DA 06-0052

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 27 

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

RAUL C. SANCHEZ,

 Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,

In and For the County of Sanders, Cause No. DC 04-39

Honorable C.B. McNeil, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright and David Avery (argued), Appellate Defender 

Office, Helena, Montana 

For Appellee:

Honorable Mike McGrath, Attorney General; C. Mark Fowler (argued),

Assistant Attorney General, Helena, Montana 

Robert Zimmerman, County Attorney, Thompson Falls, Montana 

 Heard: May 7, 2007

 Submitted: June 5, 2007

 Decided: January 31, 2008

Filed:

__________________________________________

Clerk

January 31 2008
2

Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 Raul C. Sanchez (Sanchez) appeals from his conviction in the Twentieth Judicial 

District, Sanders County, of deliberate homicide. We affirm.

¶2 We restate the issues as follows:

¶3 Did the District Court improperly allow Aleasha’s statements to be introduced 

over Sanchez’s hearsay objections?

¶4 Did the introduction of Aleasha’s note violate Sanchez’s Sixth Amendment right 

to confrontation?

¶5 Did the prosecutor’s closing argument deny Sanchez the right to a fair trial? 

¶6 Did the “lesser included offense” language of the mitigated deliberate homicide 

instruction impermissibly allow the jury to consider sentencing in reaching its verdict? 

BACKGROUND

¶7 Sanchez shot and killed Aleasha Chenowith (Aleasha) outside her home on the 

night of July 19, 2004. Later that evening, Sanchez turned himself in to law enforcement 

and admitted shooting Aleasha. The State charged Sanchez with deliberate homicide for 

Aleasha’s death.

¶8 Before trial, Sanchez moved to exclude a note the State proposed to offer as a trial 

exhibit. The note read:

To whom it concerns:

On July 8, 04 around 10:30 p [sic] Raul Sanchez Cardines told me if 

I ever was cought [sic] with another man while I was dating him, that he 

would kill me. Raul told me he had friends in Mexico that had medicine 

that would kill me and our doctors wouldn’t know what it was till it was to 

[sic] late and I would be dead.
3

So if I unexspetly [sic] become sick and on the edge of death, and 

perhaps I die no [sic] you will have some answers.

Aleasha Chenowith (written and printed signature)

¶9 Sanchez argued that the note should be excluded because it contained inadmissible 

multiple hearsay and would also violate his Sixth Amendment right to confrontation. The 

District Court denied Sanchez’s motion and ruled that Aleasha’s note was admissible as a 

statement under belief of impending death, pursuant to M. R. Evid. 804(b)(2). The 

District Court concluded that Sanchez’s statements within the note were admissible as 

either a statement against interest, pursuant to M. R. Evid. 804(b)(3), or as a statement 

describing Sanchez’s then existing state of mind, pursuant to M. R. Evid. 803(3). The 

District Court did not address Sanchez’s Confrontation Clause claim. Sanchez’s jury trial 

began on June 13, 2005.

¶10 At trial, Sanchez testified that he and Aleasha had been dating for approximately 

four-and-a-half months and that he had contemplated marrying Aleasha. However, 

Sanchez became suspicious that Aleasha was cheating on him with Angel, one of 

Sanchez’s co-workers. On July 19, 2004, Sanchez confronted Angel, who confirmed 

Sanchez’s suspicions. Sanchez testified that when he later spoke with Aleasha, she 

threatened to create problems for him with law enforcement so that Sanchez would 

ultimately have his children taken away from him. According to Sanchez, he felt as 

though “something got dark in [his] head[,]” and he shot Aleasha several times. 

¶11 At trial, the State introduced several statements that Aleasha made to others before 

her death. In addition to the note, the State elicited testimony about other instances in 
4

which Sanchez purportedly threatened Aleasha. Pamela Ehrlich testified that Aleasha 

told her about an argument she had with Sanchez. According to Ehrlich’s testimony, 

during the argument Sanchez stated, “Me love you, [Aleasha]. Me not love you that 

much. You cross me, I kill you.” The District Court overruled Sanchez’s hearsay 

objection. Leann Chenowith, Aleasha’s sister, testified that Aleasha told her that “if 

[Aleasha] ever made [Sanchez] mad . . . he had stuff in Mexico that his friend could give 

him, and that it would eat her stomach in a matter of days.” This statement was also 

admitted over Sanchez’s hearsay objection. 

¶12 During closing arguments, the prosecutor argued that the jury could convict 

Sanchez of mitigated deliberate homicide only if the jury found that Sanchez’s response

to extreme emotional distress was reasonable, rather than that his explanation for the 

extreme emotional distress was reasonable. Defense counsel objected that the prosecutor 

was misinterpreting the jury instructions, and the District Court overruled the objection. 

¶13 Sanchez objected throughout the proceedings to the mitigated deliberate homicide 

jury instruction because the instruction stated that mitigated deliberate homicide was a 

“lesser included offense” of deliberate homicide. Sanchez argued that the instruction 

allowed the jurors to indirectly consider sentencing factors in their deliberations. The 

District Court overruled Sanchez’s objection. 

¶14 The jury convicted Sanchez of deliberate homicide, and the District Court 

sentenced Sanchez to life without parole in Montana State Prison. Sanchez appeals his 

conviction.
5

STANDARD OF REVIEW

¶15 We review a district court’s evidentiary rulings for abuse of discretion. State v. 

Mizenko, 2006 MT 11, ¶ 8, 330 Mont. 299, ¶ 8, 127 P.3d 458, ¶ 8. A court abuses its 

discretion when it acts arbitrarily, without employing conscientious judgment, or exceeds 

the bounds of reason, resulting in substantial injustice. State v. Weldele, 2003 MT 117, 

¶ 72, 315 Mont. 452, ¶ 72, 69 P.3d 1162, ¶ 72. We review de novo a district court’s 

interpretation of the Sixth Amendment. Mizenko, ¶ 8. In criminal cases, we review jury 

instructions in their entirety to determine if they fully and fairly presented the applicable 

law to the jury. State v. Detonancour, 2001 MT 213, ¶ 57, 306 Mont. 389, ¶ 57, 34 P.3d 

487, ¶ 57.

DISCUSSION

¶16 I Did the District Court improperly allow Aleasha’s statements to be 

introduced over Sanchez’s hearsay objections? 

¶17 “Hearsay is a statement, other than one made by the declarant while testifying at 

the trial or hearing, offered in evidence to prove the truth of the matter asserted” within 

the statement. M. R. Evid. 801(c). Hearsay is inadmissible “except as otherwise 

provided by statute, these rules [of evidence], or other rules applicable in the courts of 

this state.” M. R. Evid. 802. Sanchez asserts that the District Court erred when it 

admitted, over hearsay objections, Aleasha’s statements to her sister, Aleasha’s 

statements to her neighbor, and Aleasha’s note. According to Sanchez, these three 

statements contain double hearsay and thus, to be admissible, must comply with the 

multiple-hearsay rule, which requires that all instances of hearsay within a statement 
6

conform to a hearsay exception. M. R. Evid. 805. We note at the outset that these three 

statements contain only one level of hearsay. Montana Rule of Evidence 801(d)(2) 

provides: 

Statements which are not hearsay. A statement is not hearsay if: . . . (2) 

Admission by party-opponent. The statement is offered against a party and 

is (A) the party’s own statement, in either an individual or a representative 

capacity . . . .

(Paragraph breaks omitted.) Thus, the statements attributable to Sanchez are exempt 

from the hearsay definition; they are not hearsay.

A. Aleasha’s statement to her sister

¶18 Leann Chenowith testified that Aleasha told her that Sanchez had threatened that 

“if [Aleasha] ever made [Sanchez] mad . . . he had stuff in Mexico that his friend could 

give him, and that it would eat her stomach in a matter of days.” The District Court 

overruled Sanchez’s hearsay objection without stating a specific rationale. Sanchez 

argues that no hearsay exception applies to this statement and that the District Court erred 

in admitting the statement. 

¶19 We conclude that the District Court correctly overruled Sanchez’s hearsay 

objection to Leann Chenowith’s testimony because the statement falls outside the hearsay 

definition. Though Aleasha made the statement outside the courtroom, the record reveals 

no indication that the State sought to prove that Sanchez actually could obtain poison

from acquaintances in Mexico. The State may have offered the statement to show a 

pattern of threats or that Sanchez contemplated killing Aleasha; however, these rationales 

are not objectionable on hearsay grounds. The District Court correctly overruled 
7

Sanchez’s hearsay objection because the State did not offer the statement to prove the 

truth of the matter asserted, and thus, the statement was not hearsay. 

B. Aleasha’s statement to her neighbor 

¶20 Pamela Ehrlich testified that Aleasha told her that, during an argument, Sanchez 

stated, “[m]e love you, [Aleasha]. Me not love you that much. You cross me, I kill you.” 

The District Court again overruled Sanchez’s hearsay objection without stating a specific 

rationale. Sanchez argues that no hearsay exception applies to this statement and that the 

District Court erred in admitting the statement. The State apparently combines its 

arguments relating to the statements of Aleasha’s neighbor and Aleasha’s sister and 

responds that Aleasha’s statements could be admissible as excited utterances, present 

sense impressions, or statements made under a belief of impending death. Alternatively, 

the State argues that if the District Court erred its error was harmless.

¶21 Our review of the record convinces us that the hearsay exceptions proposed by the 

State are inapplicable to this statement. The “present sense impression” hearsay 

exception applies to statements made “while the declarant was perceiving the event or 

condition, or immediately thereafter.” M. R. Evid. 803(1). Ehrlich’s testimony reveals 

that Aleasha’s statement recounted a threat Sanchez made the prior evening. Thus, 

Aleasha’s statement described an event that she “perceived” the prior evening, rather than 

a “present sense impression.” The “excited utterance” hearsay exception applies to 

statements “relating to a startling event or condition made while the declarant was under 

the stress of excitement caused by the event or condition.” M. R. Evid. 803(2). Ehrlich 

testified that Aleasha seemed unconcerned by Sanchez’s threat and that Aleasha 
8

remarked, “[Sanchez] was nothing more than a dumb little Mexican. He ain’t got the 

balls to do nothing.” Aleasha’s comments indicate that she lacked the “stress of

excitement” necessary to implicate the excited utterance exception. Similarly, we 

conclude that the “statement under belief of impending death” hearsay exception is 

inapplicable because Aleasha’s comments indicate that she did not make the statement 

“while believing that [her] death was imminent,” and her statement did not concern “the 

cause or circumstance of what [she] believed to be impending death.” M. R. Evid. 

804(b)(2). 

¶22 Though no exceptions apply to Aleasha’s hearsay statement, we agree with the 

State that the District Court committed harmless error because the State presented other 

admissible evidence that proved the same facts as the hearsay evidence. We apply the 

“cumulative evidence” test to determine whether a district court’s trial error is harmless. 

State v. Van Kirk, 2001 MT 184, ¶ 43, 306 Mont. 215, ¶ 43, 32 P.3d 735, ¶ 43. Under the 

“cumulative evidence” test, we consider a trial error harmless if the State demonstrates 

that the “fact-finder was presented with admissible evidence that proved the same facts as 

the tainted evidence and, qualitatively, by comparison, the tainted evidence would not 

have contributed to the conviction.” Van Kirk, ¶ 47. In Van Kirk, we abandoned the 

“overwhelming evidence” test, which emphasized the quantity of admissible evidence 

proving guilt, in favor of the “cumulative evidence” test, which focuses on the qualitative 

impact the inadmissible evidence may have on the fact-finder. Van Kirk, ¶ 43. 

¶23 Sanchez testified that his suspicions of Aleasha’s infidelity were confirmed on 

Monday morning, July 19, 2004, when Angel, a co-worker, admitted sleeping with 
9

Aleasha. Sanchez testified that he then arranged for his daughters to sleep at a friend’s 

house so that he and Aleasha could talk without his children present. He testified that he 

bagged up Aleasha’s clothes and dropped them off at her house. He knocked on the door, 

but no one answered, and Sanchez returned to work. Sanchez testified that he recognized 

a vehicle outside Aleasha’s house as he drove home from work and that he knew that 

Angel was at Aleasha’s house. Sanchez testified that he retrieved his pistol from his 

home, went to a store and bought ammunition, and then returned to Aleasha’s house. 

Again, no one answered the door, and Sanchez went home. When Aleasha called him 

that evening and asked him to come to her house, he returned to Aleasha’s and parked 

outside her house, with the gun on the seat next to him. He testified that she came 

outside, they argued, and he grabbed his gun and shot her when she threatened to have his 

children removed from his care.

¶24 Jason Sheehan, one of Sanchez’s co-workers, testified that Sanchez mentioned

during the lunch break that Sanchez was upset because Aleasha had cheated on him. 

Sheehan testified that Sanchez stated that he was going to go to Aleasha’s house, drop off 

her clothes, and “maybe slap her around a little bit.” Sheehan also testified that Sanchez 

stated that “maybe he would get out his 9 [millimeter pistol] and go shoot her.” At no 

point did Sanchez object to Sheehan’s testimony.

¶25 In light of the damaging testimony from Sheehan and Sanchez, we conclude that 

the District Court committed harmless error in admitting Aleasha’s hearsay statement. 

The testimony of Sanchez and Sheehan presented the jury with cumulative evidence that 

proved the same facts as Aleasha’s statement. Moreover, given the character of 
10

Sanchez’s and Sheehan’s in-court testimony, the jury was presented with evidence of 

deliberate homicide that qualitatively outweighed any impact that Aleasha’s statement 

may have had on the jury. The jury heard from Aleasha’s killer himself, that, after 

learning of Aleasha’s infidelity, he made arrangements for the care of his children, he 

went to the store and purchased ammunition, he took the loaded gun to Aleasha’s house, 

he waited for her to come outside, and he shot her after a brief argument. We conclude 

that the qualitative nature of Sanchez’s testimony outweighs any qualitative impact that

Aleasha’s hearsay statement may have had on the jury and that no reasonable possibility 

exists that the hearsay statement contributed to the conviction, and thus, any error is 

harmless. Van Kirk, ¶ 47. 

C. Aleasha’s note 

¶26 At trial, the State offered a note written by Aleasha that stated:

To whom it concerns:

On July 8, 04 around 10:30 p [sic] Raul Sanchez Cardines told me if 

I ever was cought [sic] with another man while I was dating him, that he 

would kill me. Raul told me he had friends in Mexico that had medicine 

that would kill me and our doctors wouldn’t know what it was till it was to 

[sic] late and I would be dead.

So if I unexspetly [sic] become sick and on the edge of death, and 

perhaps I die no [sic] you will have some answers.

Aleasha Chenowith (written and printed signature)

Sanchez objected to the note’s admission on hearsay grounds throughout the pre-trial 

proceedings and at trial. The District Court overruled Sanchez’s hearsay objection and 

concluded that M. R. Evid. 804(b)(2), the hearsay exception for statements made under 
11

belief of impending death, removed Aleasha’s written statements from the hearsay rule. 

Sanchez argues that Aleasha’s note does not indicate that she feared imminent death, and 

thus, the District Court erred in admitting the note as a dying declaration. 

¶27 We agree with Sanchez that the District Court incorrectly relied on the “statement 

under belief of impending death” hearsay exception to admit Aleasha’s note. This 

exception applies to statements “made by a declarant while believing that the declarant’s 

death was imminent, concerning the cause or circumstance of what the declarant believed 

to be impending death.” M. R. Evid. 804(b)(2). Aleasha’s statements that “if I

[unexpectedly] become sick” and “perhaps I die” indicate that she viewed her death as 

neither certain nor imminent. (Emphases added.) 

¶28 However, as with Ehrlich’s testimony, we conclude that the District Court’s ruling 

constituted harmless error. As discussed in ¶ 19, the statements relating to Sanchez’s 

Mexico connections fall outside the hearsay definition because the State did not offer the 

statements to prove that Sanchez actually could obtain poison from sources in Mexico. 

Sanchez’s threat that he would kill Aleasha if she committed adultery presents the only 

questionable portion of Aleasha’s note. The threat’s substance essentially mirrors

Sanchez’s “[y]ou cross me, I kill you” statement, and we conclude that this statement’s 

admission constitutes harmless error for the same reasons. 

¶29 The testimony of Sheehan and Sanchez presented the jury with cumulative 

evidence that proved the same facts that Aleasha’s note sought to prove. Further the 

qualitative nature of their testimony outweighs any qualitative impact that Aleasha’s 

hearsay statement may have had on the jury; we can conceive of no evidence more 
12

qualitatively damning than Sanchez’s narration of the day he killed Aleasha. Further, 

Sheehan’s account of Sanchez’s lunchtime comment that “maybe he would get out his 9 

and go shoot [Aleasha]” confirmed that Sanchez contemplated killing Aleasha shortly 

after learning of her transgression. In light of the evidence presented by Sanchez’s and 

Sheehan’s testimony, we conclude that no reasonable possibility exists that the statement 

in the note contributed to Sanchez’s conviction, and thus, any error is harmless. Van 

Kirk, ¶ 47. 

¶30 II Did the introduction of Aleasha’s note violate Sanchez’s Sixth 

Amendment right to confrontation?

¶31 Sanchez claims that the District Court violated his constitutional right to 

confrontation under both the United States and Montana Constitutions when it admitted 

Aleasha’s note as evidence. Sanchez argues that the note was “testimonial” hearsay and

thus was inadmissible unless the court found (1) that the declarant was unavailable, and 

(2) that there was a prior opportunity for cross-examination. Though Sanchez concedes 

Aleasha’s unavailability, he asserts that he had no opportunity to question her about the 

note.

¶32 The Sixth Amendment of the United States Constitution, applicable to the States 

through the Fourteenth Amendment, guarantees criminal defendants the right to be 

confronted with the witnesses against them. The Sixth Amendment’s Confrontation 

Clause applies only to testimonial hearsay. Davis v. Washington, ___ U.S. ___, 126 S.

Ct. 2266, 2274-75 (2006). Testimonial hearsay statements are inadmissible unless the 

declarant is “unavailable” for trial and the defendant had a prior opportunity for cross-
13

examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004). 

The Supreme Court emphasized in Crawford that the Sixth Amendment mandates that a 

testimonial statement’s reliability be tested “in the crucible of cross-examination[,]” not 

left to the “vagaries of the rules of evidence . . . .” Crawford, 541 U.S. at 61, 124 S. Ct. 

at 1370. Additionally, Montana’s Constitution grants a defendant the right to “meet the 

witnesses against him face to face . . . .” Mont. Const. art. II, § 24. This provision 

clarifies that full cross-examination is a critical aspect of the confrontation right. State v. 

Clark, 1998 MT 221 ¶ 22, 290 Mont. 479, ¶ 22, 964 P.2d 766, ¶ 22. 

¶33 Sanchez argues that Aleasha’s note, documenting the date and time of Sanchez’s 

alleged statement and the substance of his threat, is testimonial because it bears 

similarities to an affidavit. Additionally, Sanchez equates Aleasha’s note with Lord 

Cobham’s infamous letter, discussed by the Supreme Court in Crawford, that implicated 

Sir Walter Raleigh for treason. 541 U.S. at 44-45, 124 S. Ct. at 1360. The State argues 

that the note is non-testimonial because it reflects “an intent to direct attention (possibly 

only medical attention) to the reasons for any suspicious illness.” 

¶34 Though the United States Supreme Court has declined to comprehensively define 

“testimonial,” it has supplied a consistent starting point: 

[The Confrontation Clause] applies to “witnesses” against the accused—in 

other words, those who “bear testimony.” [1] N. Webster, An American 

Dictionary of the English Language (1828). “Testimony,” in turn, is 

typically “[a] solemn declaration or affirmation made for the purpose of 

establishing or proving some fact.” Ibid. An accuser who makes a formal 

statement to government officers bears testimony in a sense that a person 

who makes a casual remark to an acquaintance does not.
14

Crawford, 541 U.S. at 51, 124 S. Ct. at 1364; see also Davis, ___ U.S. at ___, 126 S. Ct. 

at 2274. Thus, to determine whether a witness bears testimony, the Court finds 

significant the statement’s purpose, the statement’s context, and the audience the 

statement is intended to reach. In Davis, the Court seemingly retreated from its earlier 

pronouncements that “statements taken by police officers in the course of interrogations 

are . . . testimonial under even a narrow standard” and that “[w]hatever else the term 

[testimonial] covers, it applies at a minimum to . . . police interrogations.” Crawford,

541 U.S. at 52, 68, 124 S. Ct. at 1364, 1374. The Davis Court concluded that whether or 

not a statement made to police officers during an interrogation is testimonial hinges on 

the interrogation’s primary purpose: if the interrogation’s primary purpose is to “establish 

or prove past events potentially relevant to later criminal prosecution[,]” the statement is 

testimonial; if the interrogation’s primary purpose is to “enable police assistance to meet 

an ongoing emergency[,]” the statement is non-testimonial. Davis, ___ U.S. at ___, 126 

S. Ct. at 2273-74. As the Supreme Court’s reasoning in Davis illustrates, the Court finds 

no particular inquiry dispositive in determining whether a statement is testimonial. 

¶35 In State v. Mizenko, we discussed what constitutes a testimonial statement. In 

general, a declarant’s statements are presumed testimonial if they are knowingly made to 

a police officer or government agent. Mizenko, ¶ 23. A statement is presumed nontestimonial, however, if the declarant had “objective reason to believe” that the statement 

served only “to avert or mitigate an imminent or immediate danger” and the agent 

receiving the statement lacked intent to create evidence. Mizenko, ¶ 23. A statement 

made to a non-governmental agent is non-testimonial unless the declarant had “clear 
15

reason to believe that the statement would be used in court as substantive evidence 

against the defendant . . . .” Mizenko, ¶ 23. Thus, though we declined to formulate a 

comprehensive definition of “testimonial,” we recognized that certain presumptions arise 

depending on the intended audience and the purpose of the statement. 

¶36 In our Mizenko discussion we also found significant a statement’s context, and we 

looked to whether a declarant reasonably should expect that the State would use the 

declarant’s statements at trial. Mizenko, ¶¶ 17-21. We noted the Supreme Court’s 

characterization of “a casual remark to an acquaintance” as non-testimonial, Crawford, 

541 U.S. at 51, 124 S. Ct. at 1364, and we explained that the word “‘casual’ . . . modifies 

the declarant’s assumption as to what use, if any, the listener might make of the 

statement.” Mizenko, ¶ 17. If an objective declarant reasonably would expect the State to 

use the declarant’s statements at trial, then, absent an opportunity for confrontation, the 

Sixth Amendment bars the admissibility of such statements. Mizenko, ¶ 17. Further, we 

recognized that a statement’s characterization as testimonial did not depend on 

government involvement in the declarant’s making the statement: “‘Thus, if just before 

trial a person shoved a written statement under the courthouse door, asserting that the 

accused did in fact commit the crime, that would plainly be testimonial even though no 

government official played a role in preparing the statement.’” Mizenko, ¶ 19 (quoting 

Richard D. Friedman, The Confrontation Clause Re-Rooted and Transformed, 2004 Cato 

Sup. Ct. Rev. 439, 458). 

¶37 Aleasha addressed her note “[t]o whom it concerns[.]” Her stated reason for 

writing the note was that “if I unexspetly [sic] become sick and on the edge of death, and 
16

perhaps I die no [sic] you will have some answers.” The note’s substance indicates that 

the note’s purpose was to explain her untimely death or poisoning, not to prevent or 

mitigate future harm. Aleasha’s short note named the person she suspected would kill 

her and the method he threatened to use. In essence, Aleasha’s note contained 

information that could establish or prove facts to answer questions regarding how, why, 

and by whom she had been harmed or killed. The State’s contention that the purpose of 

Aleasha’s note may have been to “direct attention (possibly only medical attention) to the 

reasons for any suspicious illness[,]” completely ignores the accusatory nature of the note

(as does Justice Rice’s concurrence): in a nine-line note, Aleasha documented the date 

and time that Sanchez threatened her, she named Sanchez as her suspected killer, she 

described Sanchez’s motive, and she described his threatened method of execution. 

Though Aleasha did not address her note specifically to police officers, the note’s 

substance and its comprehensive salutation indicate that it reasonably included law 

enforcement.

¶38 Moreover, the circumstances surrounding Aleasha’s note indicate that it bears 

little similarity to a non-testimonial “casual remark to an acquaintance.” Crawford, 541 

U.S. at 51, 124 S. Ct. at 1364. Rather, the circumstances indicate that an objective 

declarant would reasonably expect the State to make use of her statement: Aleasha 

memorialized Sanchez’s threat by writing it down on a piece of paper from a yellow legal 

pad; she used a formal salutation on the note: “[t]o whom it concerns:”; the note asserted 

that Sanchez had already committed a crime—threatening Aleasha; the note asserted that 

Sanchez contemplated a future crime—killing Aleasha; and she formally ended her note 
17

by both printing and signing her name. Additionally, though Aleasha did not “shove a 

written statement under the courthouse door,” she did leave the note in a location that an 

officer investigating her death could easily find it; the officer testified that he found the 

note on Aleasha’s kitchen counter with her bills and correspondence. Mizenko, ¶ 19. We 

conclude that Aleasha’s note was testimonial because the purpose of the note was to 

explain Aleasha’s untimely death or poisoning, the intended audience reasonably 

included law enforcement, and the circumstances surrounding the note indicate that an 

objective declarant reasonably should have anticipated that the State would make use of 

the statements at trial. Our conclusion that Aleasha’s note was testimonial, however, 

does not end our analysis.1 

 

1

In his concurrence, Justice Rice relies on State v. Spencer, 2007 MT 245, 339 

Mont. 227, 169 P.3d 384, for the proposition that we should consider the “primary 

purpose” of Aleasha’s note itself to determine whether the note constitutes a testimonial 

statement. The concurrence misreads Spencer. 

In Spencer, we determined that a three-and-a-half-year-old victim’s statements 

were non-testimonial after determining that the witnesses testifying about the statements 

had heard the statements in their capacities as a foster parent and a counselor, rather than 

as state investigators. Spencer, ¶ 23. Because the statements were made to nongovernmental agents, the statements were presumed non-testimonial unless the declarant 

had “clear reason to believe” that they would be used against the defendant in court. 

Mizenko, ¶ 23. We concluded, however, that the “clear reason to believe” standard was 

unworkable when applied to a three-and-a-half-year-old victim and, relying on the United 

States Supreme Court’s Davis decision, we looked to the “primary purpose” of the 

interaction between the declarant and the witnesses because the circumstances 

surrounding the statements bore similarities to an interrogation. Spencer, ¶ 22. 

Here, in contrast to Spencer, the declarant, Aleasha, was a competent adult and the 

circumstances bear no similarities to an interrogation. Even if the circumstances were 

akin to an interrogation, the proper focus would be on the primary purpose of the 

interrogation or interaction, not, as the concurrence suggests, on the primary purpose of 

the statement itself. Moreover, though we concluded in Spencer that the declarant’s age 

made the Mizenko presumptions unworkable, those presumptions were nonetheless 
18

¶39 Though the Supreme Court held in Crawford that the Confrontation Clause 

mandates cross-examination to assess a testimonial statement’s reliability, the Court 

nonetheless acknowledged that exceptions to the Confrontation Clause exist. Crawford, 

541 U.S. at 62, 124 S. Ct. at 1370. The Court cited the forfeiture by wrongdoing doctrine 

as one such exception: “the rule of forfeiture by wrongdoing (which we accept) 

extinguishes confrontation claims on essentially equitable grounds; it does not purport to 

be an alternative means of determining reliability.” Crawford, 541 U.S. at 62, 124 S. Ct. 

at 1370. In Davis, the Court again referenced the equitable doctrine, stating that “one 

who obtains the absence of a witness by wrongdoing forfeits the constitutional right to 

confrontation.” Davis, ___ U.S. at ___, 126 S. Ct. at 2280. 

¶40 As this case presents our first opportunity to consider the forfeiture by wrongdoing 

doctrine since the Crawford decision, other jurisdictions’ post-Crawford decisions aid 

our analysis. To the extent that it applies to an admitted and intentional killing, we find 

persuasive the Sixth Circuit’s reasoning in U.S. v. Garcia-Meza, 403 F.3d 364 (6th Cir. 

2005). In Garcia-Meza, a jury convicted the defendant of murdering his wife after

hearing testimony from law enforcement officers describing the wife’s hearsay

statements concerning a prior assault. At trial, the defendant admitted killing his wife, 

but argued that her murder was not premeditated. Garcia-Meza, 403 F.3d at 367. On 

appeal, Garcia-Meza claimed that his right to confrontation was violated when his wife’s 

hearsay statements were admitted into evidence. Garcia-Meza, 403 F.3d at 369. The 

 

initially implicated and necessitated the “primary purpose” analysis; no presumptions are 

implicated in this case. For these reasons, Spencer is not applicable to the present case.
19

Sixth Circuit disagreed and held that Garcia-Meza had forfeited his right to confrontation 

because his wrongdoing caused her unavailability. Garcia-Meza, 403 F.3d at 370 (citing

Crawford, 541 U.S. at 62, 124 S. Ct. at 1370; Reynolds v. U.S., 98 U.S. 145, 158-59, 25 

L. Ed. 244, 248 (1879) (“The rule has its foundation in the maxim that no one shall be 

permitted to take advantage of his own wrong.”)). The Sixth Circuit noted that no 

dispute existed as to whether the defendant killed his wife; the dispute centered, rather,

on whether the defendant acted with premeditation. Thus, the court reasoned, because 

the defendant was responsible for the declarant’s unavailability, he forfeited his right to 

confrontation. Garcia-Meza, 403 F.3d at 370. 

¶41 The Sixth Circuit specifically rejected Garcia-Meza’s argument that the forfeiture 

doctrine applies only when the defendant has committed wrongdoing with the intent to 

prevent the witness from testifying. Garcia-Meza, 403 F.3d at 370. The court stated that

the Supreme Court’s affirmation of the forfeiture doctrine’s equitable basis “strongly 

suggests that the rule’s applicability does not hinge on the wrongdoer’s motive.” GarciaMeza, 403 F.3d at 370. The court further reasoned that a defendant would benefit if his 

wrongdoing prevented a witness from testifying against him, regardless of whether or not 

that was his intent. The Sixth Circuit held that the rule of forfeiture, based on equitable 

principles, permits no such result. Garcia-Meza, 403 F.3d at 370-71. 

¶42 The Sixth Circuit decided Garcia-Meza in the interim between the United States 

Supreme Court’s Crawford and Davis decisions. In Davis, the Supreme Court further 

clarified the forfeiture by wrongdoing doctrine. In response to the contention that 

domestic violence cases require more flexibility regarding testimonial evidence, the 
20

Court reiterated that the doctrine operates to extinguish “confrontation claims on 

essentially equitable grounds.” Davis, ___ U.S. at ___, 126 S. Ct. at 2280 (citations 

omitted). The Court noted that domestic violence crimes are particularly prone to victim 

intimidation and coercion to prevent the victim from testifying, and it stated that: 

[W]hen defendants seek to undermine the judicial process by procuring or 

coercing silence from witnesses and victims, the Sixth Amendment does 

not require courts to acquiesce. While defendants have no duty to assist the 

State in proving their guilt, they do have the duty to refrain from acting in 

ways that destroy the integrity of the criminal-trial system.

Davis, ___ U.S. at ___, 126 S. Ct. at 2279-80. The Court further stated that Federal Rule 

of Evidence 804(b)(6) codifies the forfeiture doctrine. Though primarily dicta, the Davis

discussion of the forfeiture doctrine and the Court’s statement that Rule 804(b)(6) 

“codifies” the doctrine has generally been interpreted by lower courts to require a 

defendant’s intent to silence a witness by wrongdoing before applying the doctrine. E.g.

Colorado v. Moreno, 160 P.3d 242, 245-46 (Colo. 2007) (collecting cases and noting that 

“the clear consensus in non-murder cases is that the doctrine requires a showing of an 

intent on the part of the defendant to prevent the declarant from testifying at trial.”). 

¶43 Though the Supreme Court’s discussion of the forfeiture doctrine in Davis

seemingly casts doubt on the Sixth Circuit’s reasoning in Garcia-Meza, other 

jurisdictions’ post-Davis decisions concur with the Sixth Circuit that, in homicide cases, 

the doctrine’s applicability does not depend on whether the defendant intended to silence 

a witness. For example, in California v. Giles, a murder case, the California Supreme 

Court held that an “intent-to-silence” element is not a prerequisite to the forfeiture 

doctrine’s applicability. 152 P.3d 433, 443 (Cal. 2007), cert. granted, ___ U.S. ___, 
21

2008 WL 109701 (Jan. 11, 2008). The defendant in Giles admitted killing his girlfriend, 

but argued that he acted in self-defense. The California Supreme Court adopted its

appellate court’s reasoning that “[f]orfeiture is a logical extension of the equitable 

principle that no person should benefit from his own wrongful acts.” Giles, 152 P.3d at 

443. The court further reasoned that, regardless of whether a defendant specifically 

intended to prevent a witness from testifying, “[a] defendant whose intentional criminal 

act renders a witness unavailable for trial benefits from his crime if he can use the 

witness’s unavailability to exclude damaging hearsay statements by the witness that 

would otherwise be admissible.” Giles, 152 P.3d at 443. 

¶44 The California Supreme Court rejected the defendant’s argument that language 

from Davis discussing the forfeiture doctrine—“‘when defendants seek to undermine the 

judicial process by procuring or coercing silence from witnesses and victims’”—

supported an intent-to-silence requirement. Giles, 152 P.3d at 443 n. 5 (quoting Davis,

___ U.S. at ___, 126 S. Ct. at 2280). Rather, the court stated that the Supreme Court 

simply was describing traditional witness tampering cases in a domestic violence context. 

Giles, 152 P.3d at 443 n. 5. The California court considered it more significant that the 

Supreme Court reaffirmed the forfeiture doctrine’s equitable nature and clarified that 

Crawford did not destroy a court’s ability to protect the integrity of its proceedings. 

Giles, 152 P.3d at 443 n. 5. The Giles court concluded that applying the forfeiture 

doctrine without an intent-to-silence requirement was proper to protect the integrity of a 

court’s proceeding: “courts should be able to further the truth-seeking function of the 
22

adversary process when necessary, allowing fact finders access to relevant evidence that 

the defendant caused not to be available through live testimony.” Giles, 152 P.3d at 444.

¶45 Even jurisdictions that impose an intent-to-silence requirement on the forfeiture by 

wrongdoing doctrine recognize that homicide cases may present an exception. For 

example, in Illinois v. Stechly, the Illinois Supreme Court left open the possibility of a 

homicide exception though it determined that the above-quoted language from Davis

“strongly connotes a requirement of intent.” 870 N.E.2d 333, 350-53 (Ill. 2007)

(plurality). The Stechly court declined to apply the forfeiture doctrine to a sexual abuse 

case, absent evidence showing that the defendant intended to prevent the witness from 

testifying, and noted that outside the context of murder cases, the authorities uniformly 

require proof of intent.2 Stechly, 870 N.E.2d at 353 (plurality). The court distinguished 

the majority of cases, which hold that intent is irrelevant, as either predating Davis or as 

involving the defendant’s murdering the witness. Stechly, 870 N.E.2d at 351-52

(plurality). The Illinois court further noted that jurisdictions that did not impose an 

intent-to-silence requirement in murder cases feasibly were reconcilable with the general 

rule requiring intent. Summarizing the reasoning of those cases, the Illinois court stated 

that those jurisdictions essentially hold that: 

[T]he prosecution need not prove that the defendant committed murder with 

the intent of procuring the victim’s absence. This is consistent with 

presuming such intent when the wrongdoing at issue is murder. When a 

 

2Recent holdings of the California Supreme Court in Giles and the Washington Supreme 

Court in Washington v. Mason, 162 P.3d 396 (Wash. 2007) challenge the Stechly 

plurality’s claim. Though both the California and Washington cases involved homicide 

cases, the courts’ holdings that the applicability of the forfeiture doctrine required no 

intent-to-silence were not limited to homicide cases. 
23

defendant commits murder, notwithstanding any protestation that he did not 

specifically intend to procure the victim’s inability to testify at a subsequent 

trial, he will nonetheless be sure that this would be a result of his actions.

Murder is, in this sense, different from any other wrongdoing in which a 

defendant could engage with respect to a witness—more than a possibility, 

or a substantial likelihood, a defendant knows with absolute certainty that a 

murder victim will not be available to testify.

Stechly, 870 N.E.2d at 352-53 (plurality). Thus, the Illinois court left open the possibility 

that the intent to prevent a witness’s testimony could be “presumed” in the murder 

context, while otherwise requiring proof of intent. Stechly, 870 N.E.2d at 352-53 

(plurality).

¶46 To the extent that a deliberate criminal act results in the victim’s death, we agree 

that the forfeiture by wrongdoing doctrine does not hinge on whether the defendant 

specifically intended to silence a witness. The doctrine derives from the maxim that no 

person should benefit from the person’s own wrongdoing. Reynolds v. U.S., 98 U.S. at 

158-59, 25 L. Ed. at 248; Garcia-Meza, 403 F.3d at 370. The natural result of a 

deliberate killing is always that the victim is unavailable to testify; we agree with the 

Giles court that a defendant whose intentional criminal act results in a victim-declarant’s 

death benefits from the defendant’s wrongdoing if the defendant can use the death to 

exclude the victim-declarant’s otherwise admissible testimony, regardless of whether the 

defendant specifically intended to silence the victim-declarant. Giles, 152 P.3d at 443. 

Such a result undermines the judicial process and threatens the integrity of court 

proceedings, and though courts may not “vitiate constitutional guarantees when they have 

the effect of allowing the guilty to go free[,]” nor must they acquiesce in the destruction 

of the criminal-trial system’s integrity. Davis, ___ U.S. at ___, 126 S. Ct. at 2280.
24

¶47 The facts of this case are substantially similar to those of Garcia-Meza. Sanchez 

fatally shot Aleasha, thereby rendering her unavailable as a witness. Sanchez was 

charged with Aleasha’s homicide, and the State introduced her prior statements. No 

dispute exists as to whether Sanchez killed Aleasha—he admitted it to law enforcement 

and at trial. We need not determine whether the defendant’s wrongdoing is the same act 

for which he was tried because the dispute at trial centered on whether mitigating 

circumstances existed, not on whether Sanchez killed Aleasha. We conclude that 

Sanchez forfeited his Sixth Amendment right to confront Aleasha when he killed her. 

Moreover, Sanchez cannot claim that his Montana constitutional right to “meet the 

witnesses against him face to face” was violated when his admittedly deliberate 

wrongdoing prevented such a confrontation. We emphasize the narrow holding on this 

issue: when a defendant admittedly and deliberately kills another person, thus procuring 

the person’s unavailability as a witness, the defendant forfeits the constitutional rights to 

confront the victim at trial.

3

 Whether the doctrine of forfeiture by wrongdoing applies to 

situations in which the defendant disputes the underlying act of “wrongdoing” or to

situations in which the wrongdoing does not result in death are issues not presented or 

addressed in this case. 

 

3

In his special concurrence, Justice Nelson concludes that the Court errs by adopting the 

reasoning of the California court in Giles. Lest anyone be confused, there is a difference 

between discussing an opinion from a sister state and “adopting” that court’s reasoning. 

We do not adopt Giles. Rather, our holding is heavily qualified: the wrongdoing must be 

deliberate, it must be criminal, and it must result in the victim/declarant’s death. Despite 

the concurrence’s protestations to the contrary, our holding does not amount to a “broad 

sweeping statement” as to the applicability of the forfeiture doctrine.
25

¶48 Though the District Court failed to address Sanchez’s Confrontation Clause claim 

and based its ruling on hearsay exceptions, we cannot say the District Court reached an 

incorrect result. We will uphold a district court’s correct decision, regardless of the 

stated rationale. State v. Rensvold, 2006 MT 146, ¶ 34, 332 Mont. 392, ¶ 34, 139 P.3d 

154, ¶ 34. We conclude the District Court reached the legally correct result. 

¶49 III Did the prosecutor’s closing argument deny Sanchez the right to a fair 

trial? 

¶50 Sanchez asserts that the prosecutor engaged in misconduct by repeatedly 

misstating the law regarding the elements of mitigated deliberate homicide during closing 

arguments and that these misstatements denied Sanchez his right to a fair trial. The State 

maintains that Sanchez has waived his right to appeal this issue because he failed to move 

the District Court for curative measures, such as a mistrial or a cautionary instruction. As 

Sanchez points out, however, his objection was overruled, and he had no reason to 

anticipate that the District Court would issue curative measures. We conclude that 

Sanchez’s objection during closing arguments properly preserved this issue for appeal. 

Section 46-20-104, MCA. 

¶51 If a prosecutor’s improper comments prejudice a defendant’s right to a fair trial, 

then the proper remedy is reversal. State v. Stringer, 271 Mont. 367, 381, 897 P.2d 1063, 

1072 (1995). Though Sanchez did not move the District Court for a mistrial based on 

prosecutorial misconduct, we employ the same two-step analysis we use to review a 

denial of such a motion: we determine first whether the prosecutor made improper 
26

comments, and, if so, whether the comments prejudiced the defendant’s right to a fair and 

impartial trial. State v. Gladue, 1999 MT 1, ¶ 12, 293 Mont. 1, ¶ 12, 972 P.2d 827, ¶ 12. 

A. The prosecutor’s comments during closing argument

¶52 Sanchez argues that the prosecutor repeatedly misstated the law regarding 

mitigated deliberate homicide during the State’s closing argument and rebuttal. 

Specifically, Sanchez points to the prosecutor’s statement that, to convict for mitigated 

deliberate homicide, the jury had to find that Sanchez’s response to extreme emotional 

distress was reasonable, rather than that a reasonable explanation existed for his

emotional distress. The prosecutor then argued: 

[t]he streets would be littered with corpses if it was reasonable to shoot 

somebody because they cheated on you and made you angry. Based on 

your own lifetime experiences you have seen that. You may have been part 

of it. Did you kill somebody? Did somebody kill you, your friends, other 

people? No. That answers the question. This is not a reasonable response

for a person under these circumstances.

(Emphasis added.) Sanchez argues that the plain language of the mitigated deliberate 

homicide statute indicates that “reasonable” modifies the defendant’s emotional state, not 

the defendant’s actions. The statute provides that a person who commits a deliberate 

homicide, “but does so under the influence of extreme mental or emotional stress for 

which there is reasonable explanation or excuse” has committed mitigated deliberate 

homicide. Section 45-5-103(1), MCA. The statute is unambiguous, and we conclude

that the prosecutor misstated the law. 

¶53 On appeal, the State argues that the prosecutor’s remarks are “troubling” only 

because they are not presented in their proper context. The State then attempts to furnish
27

this context by directing us to two instances when the prosecutor made “accurate” 

statements of the law. The first instance the State identifies is an accurate statement of 

the law; however, the State has misidentified the speaker: it was Sanchez’s counsel, not 

the prosecutor who properly stated the law on mitigated deliberate homicide. The second 

instance, though properly attributed to the prosecutor and an accurate statement of the 

law, was followed directly by an incorrect explanation: 

The reasonableness of the explanation or excuse must be determined from 

the viewpoint of a reasonable person in the actor’s situation. That is, what 

would a reasonable person do, not what the defendant did. The evidence in 

this case shows you it was not reasonable. And if it’s not reasonable, there 

goes mitigated deliberate homicide.

(Emphasis added.) 

¶54 The State maintains that improvising during closing arguments frequently results 

in imperfect syntax and less than crystal clear meaning. The comments at issue,

however, demonstrate a blatant misstatement of the law, not mere inadvertence. The 

prosecutor’s improper closing argument went far beyond appropriate ad-libbing and 

tested the boundaries of professional ethics. We cannot accept the State’s incongruous 

arguments in support of the prosecutor’s statements, and we conclude that the 

prosecutor’s statements were improper.

B. Prejudicial effect of improper comments

¶55 Having determined that the prosecutor improperly stated the law, we must next 

determine whether the comments prejudiced Sanchez’s right to a fair and impartial trial. 

Gladue, ¶ 12. We do not presume that a prosecutor’s improper comments prejudiced a 

defendant’s right to a fair and impartial trial; rather, Sanchez must demonstrate, from the 
28

record, that the prosecutor’s misstatements prejudiced him. Gladue, ¶ 27. Additionally, 

when determining prejudicial effect, we review improper comments in the context of the 

entire case. Gladue, ¶ 27.

¶56 Sanchez offers as evidence of prejudicial effect a note from the jury to the District 

Court requesting additional instructions. The note reads: “Your Honor, One of our jurors 

has requested that you define the term ‘reasonable.’” Sanchez argues that the jury’s note 

indicates that the jury was confused by the term “reasonable,” that the prosecutor’s 

improper comments caused this confusion, and that Sanchez’s right to a fair trial was thus 

prejudiced. 

¶57 The jury’s note requested only that the District Court define “reasonable.” The 

note did not indicate that the jury was confused as to which term “reasonable” modified. 

Moreover, the jury instruction on mitigated deliberate homicide accurately conveyed §

45-5-103, MCA, which unambiguously states that “reasonable” modifies the explanation 

for the extreme mental or emotional stress, not the defendant’s act of causing the death of 

another human being. The jury additionally was presented with defense counsel’s correct 

interpretation of the law and the District Court’s instructions on mitigated deliberate 

homicide. The prosecutor also informed the jury that the attorneys’ closing arguments 

were not evidence. Before closing arguments the District Court read aloud the jury 

instructions and stated that the instructions “constitute[d] the law that [the jury] must 

follow in this case.” American jurisprudence depends on a jury’s ability to follow 

instructions and juries are presumed to follow the law that courts provide. State v. 
29

Turner, 262 Mont. 39, 55, 864 P.2d 235, 245 (1993); Opper v. U.S., 348 U.S. 84, 95, 75 

S. Ct. 158, 165 (1954). 

¶58 Based on the lack of ambiguity in the mitigated deliberate homicide instruction, 

the District Court’s oral and written instructions to the jury, and the presumption that the 

jury followed the law, we conclude that Sanchez has failed to demonstrate that the 

prosecutor’s improper comments prejudiced his right to a fair and impartial trial. 

¶59 IV Did the “lesser included offense” language of the mitigated deliberate 

homicide instruction impermissibly allow the jury to consider sentencing in 

reaching its verdict? 

¶60 Sanchez claims that the jury instruction defining mitigated deliberate homicide as 

a “lesser included offense of Deliberate Homicide” improperly allowed the jury to 

consider sentencing in reaching its verdict. Sanchez asserts that this language “probably

pushed the jurors away from fully considering [his] mitigated deliberate homicide 

defense.” (Emphasis added.) Sanchez argues that including the word “lesser” in the 

instruction may have permitted the jury to surmise that Sanchez would receive a lesser 

sentence if the jury convicted him of mitigated deliberate homicide rather than of 

deliberate homicide.

¶61 A jury should not consider sentencing in determining a defendant’s guilt or 

innocence. State v. Brodniak, 221 Mont. 212, 226-27, 718 P.2d 322, 332 (1986)

(citations omitted). We recognized in Brodniak that a verdict form containing the terms 

misdemeanor and felony could permit a jury indirectly to consider a defendant’s 

punishment. Brodniak, 221 Mont. at 226-27, 718 P.2d at 332. We review jury 
30

instructions in criminal cases in their entirety to determine if they fully and fairly 

presented the applicable law to the jury. State v. Detonancour, 2001 MT 213, ¶ 57, 306 

Mont. 389, ¶ 57, 34 P.3d 487, ¶ 57. District courts have broad discretion when 

instructing juries, and reversible error occurs only if the jury instructions prejudiced the 

defendant’s substantial rights. State v. Strauss, 2003 MT 195, ¶ 47, 317 Mont. 1, ¶ 47, 74 

P.3d 1052, ¶ 47. 

¶62 The District Court provided the jury a mitigated deliberate homicide instruction 

that closely parallels § 45-5-103, MCA, the statute defining mitigated deliberate 

homicide. The jury instruction correctly stated the law. Additionally, the jury 

instructions, taken together, accurately set forth the State’s burden of proof and the 

elements that the jury must find to convict Sanchez of mitigated deliberate homicide or 

deliberate homicide. To give a jury instruction on mitigated deliberate homicide that 

would alleviate Sanchez’s concern would be difficult, if not impossible. If, as Sanchez 

argues, use of the word “lesser” invited the jury to indirectly consider punishment, the 

same can be said of the word “mitigated”—a term defining the very essence of the 

described offense. The jury instructions, when viewed in their entirety, fully and fairly 

presented the applicable law to the jury. Moreover, Sanchez’s speculation that the “lesser 

included” language probably dissuaded the jury from a mitigated deliberate homicide 

verdict cannot overcome the presumption that the jury actually followed the law that the 

District Court provided. Turner, 262 Mont. at 55, 864 P.2d at 245. We conclude that the 

District Court properly instructed the jury.
31

¶63 Affirmed.

/S/ W. WILLIAM LEAPHART

We concur: 

/S/ BRIAN MORRIS

Justice Jim Rice specially concurs. 

¶64 I agree with the Court’s conclusion to affirm the District Court’s judgment on 

Issues I-IV. However, I disagree with the Court’s analysis under Issues IB, IC, and II, 

and would affirm under alternate reasoning. 

Issue I

¶65 The Court determines that Aleasha’s statement to her neighbor (Issue IB) and 

Aleasha’s note (Issue IC) are hearsay to which no hearsay exception applies, but that the 

District Court’s admission of this evidence constituted “harmless error” for which we 

need not reverse. Opinion, ¶ 28. While I agree with the outcome of the Court’s decision, 

I write separately to urge the adoption of the forfeiture by wrongdoing exception to the 

hearsay rules. 

¶66 Forfeiture by wrongdoing, as this Court accepts, is an equitable concept that 

prevents an individual from benefiting from his own wrongful actions. Opinion, ¶ 47. In 

fact, Montana law generally codifies the equitable principle in § 1-3-208, MCA (2005), 

which states that “[n]o one can take advantage of his own wrong.” While the Montana 

Rules of Evidence are silent regarding the forfeiture doctrine’s relation to hearsay, the 
32

principle has been codified in the Federal Rules of Evidence as Rule 804(b)(6). This rule 

provides that: “A statement offered against a party that has engaged or acquiesced in 

wrongdoing that was intended to, and did, procure the unavailability of the declarant as a 

witness” is not considered hearsay.4

¶67 The United States Supreme Court first applied the doctrine of forfeiture by 

wrongdoing in Reynolds v. United States, 98 U.S. 145, 158 (1878): 

The Constitution does not guarantee an accused person against the 

legitimate consequences of his own wrongful acts. . . . [I]f [a defendant] 

voluntarily keeps the witnesses away, he cannot insist on his [Sixth 

Amendment] privilege. If, therefore, when absent by his procurement, their 

evidence is supplied in some lawful way, he is in no condition to assert that 

his constitutional rights have been violated.

The Supreme Court recently affirmed the doctrine’s validity in Crawford v. Washington, 

541 U.S. 36, 62, 124 S. Ct. 1354, 1370 (2004) (“the rule of forfeiture by wrongdoing 

(which we accept) extinguishes confrontation claims on essentially equitable grounds”). 

It has been adopted by numerous state courts as well. After recently considering both the 

evidentiary and constitutional aspects of the issue, the Supreme Judicial Court of 

Massachusetts noted that “we are aware of no jurisdiction that, after considering the 

doctrine, has rejected it.” Commonwealth v. Edwards, 830 N.E.2d 158, 166-67 (Mass. 

2005). Even after acknowledging that its state constitution provides broader protections 

 

4

The dissenting opinion states that the adoption of the forfeiture by wrongdoing exception 

within the Federal Rules of Evidence is not “a principled ground” for considering 

adoption of the exception for our state rules. Dissent, ¶ 123 n. 5. I confess an inability to 

understand why consideration of the approach taken by the federal rules—and indeed, the 

approach of many other states who have likewise adopted the exception—on an 

evidentiary issue is unprincipled. Nor does adoption of the exception eliminate all 

considerations of trustworthiness. 
33

than the federal constitution, the Massachusetts Court interpreted its state constitution 

“coextensively” with the federal constitution on this issue and recognized the doctrine, 

“[g]iven the overwhelming precedential and policy support for its adoption[.]” Edwards, 

830 N.E.2d at 168. 

¶68 I would apply this principle to the Rules of Evidence as well. However, despite a

previous opportunity to do so, the Court has so far declined. We were presented with 

proposed M. R. Evid. 804(b)(6), the forfeiture by wrongdoing exception to M. R. Evid. 

802’s bar against admission of hearsay, following a recent rule review process. Support 

for the adoption was offered by various members of the Commission on Evidence and by 

district court judges, but the Court rejected the rule. I continue to believe that the rule 

would serve an appropriate and important purpose in the search for truth which our courts 

are intended to conduct. The instant case presents a clear example of how a defendant 

may benefit from his wrongdoing and why the exception should be adopted. 

Accordingly, the Court’s holding, which applies the forfeiture doctrine as an exception to 

the Confrontation Clause, should apply with equal force as an exception to the rule 

against hearsay, which would admit the evidence at issue here. 

Issue II

¶69 The Court concludes that Aleasha’s note was testimonial because “the purpose of 

the note was to explain Aleasha’s untimely death or poisoning, the intended audience 

reasonably included law enforcement, and the circumstances surrounding the note 

indicate that an objective declarant reasonably should have anticipated that the State 

would make use of the statements at trial.” Opinion, ¶ 38. I cannot agree with any of 
34

these conclusions because the Court has added its own speculation, or has ignored parts 

of the note, to reach each one.

¶70 First, the Court states that the “note’s substance indicates that the note’s purpose 

was to explain her untimely death or poisoning . . . .” Opinion, ¶ 37. However, the Court 

does not adequately consider that the note gave instruction in the event Aleasha 

unexpectedly would “become sick and on the edge of death.” In such a sickened state, 

Aleasha would benefit by giving her medical providers the “answers” she was providing 

in the note. The Court simply pretends these words do not exist. The State’s argument to 

this effect is improperly dismissed by the Court.

¶71 Then, the Court concludes that the note was “intended” for law enforcement 

because it was left in the kitchen. Opinion, ¶ 38. This conclusion is based upon the 

Court’s surmise that law enforcement could more easily find it there. Assigning an 

intention by Aleasha to involve law enforcement from this most ordinary of actions is 

mere speculation. I submit that the note would have been found by law enforcement in 

any room of the house, and its location in the kitchen, without more, added nothing to the 

note’s testimonial significance. Indeed, when the “more” is considered, which is 

virtually ignored by the Court, a contrary conclusion appears. The note was handwritten 

on a small, single piece of paper and was found in Aleasha’s kitchen among her personal 

correspondence and bills. The location of the note in Aleasha’s personal home, among 

personal papers, supports the objective conclusion that the note had a personal purpose 

and was meant for those who would have been typical visitors to her kitchen. Aleasha 

made no effort whatsoever to put her message into the hands of officials, to otherwise 
35

take precautions to protect or preserve the message for legal purposes, or to even label or 

direct the note to law enforcement. 

¶72 While the Court states that it “finds no particular inquiry dispostive in determining 

whether a statement is testimonial[,]” Opinion, ¶ 34, the Court’s analysis implies the 

question is susceptible to short, simplistic solutions: first, that because the note was more 

than a “casual remark,” it must be testimonial, and because the note was discovered by a 

police officer, it must have been intended for police to easily find it. Opinion, ¶ 38. This 

ignores the further details of the note and the surrounding circumstances. 

¶73 When determining if a statement made by an unavailable declarant is testimonial, 

two Montana cases guide us: State v. Mizenko and State v. Spencer. In State v. Mizenko, 

we offered initial, post-Crawford boundaries of testimonial and non-testimonial 

statements for purposes of the Confrontation Clause. 2006 MT 11, 330 Mont. 299, 127 

P.3d 458. We concluded that statements are testimonial in at least two situations: (1) 

“when a declarant knowingly speaks to a police officer or governmental agent” and (2) 

when the declarant had a “clear reason to believe that the statement would be used in 

court as substantive evidence against the defendant . . . .” Mizenko, ¶ 23. In contrast, we 

explained that a statement is non-testimonial when the declarant has an “objective reason 

to believe” that the statement will serve to “avert or mitigate an imminent or immediate 

danger . . . .” Mizenko, ¶ 23. We also stated that the “clear reason to believe” standard is 

an “objective” standard. Mizenko, ¶ 23 n. 3. 

¶74 In State v. Spencer, we elaborated on Mizenko, concluding that where the “clear 

reason to believe” standard is “unworkable,” we must review the statement to determine 
36

its “primary purpose.” 2007 MT 245, ¶ 22, 339 Mont. 227, ¶ 22, 169 P.3d 384, ¶ 22. 

There, we relied on the Supreme Court’s decision in Davis v. Washington, 547 U.S. ___, 

126 S. Ct. 2266 (2006). Spencer, ¶¶ 22-23. In Davis, the Supreme Court decided that 

when circumstances objectively indicate that the primary purpose of an interrogation is to 

enable police to assist in an ongoing emergency, the statements are non-testimonial. 

Davis, 547 U.S. at ___, 126 S. Ct. at 2273. If however, the circumstances objectively 

signify that an ongoing emergency does not exist, but rather the interrogation’s purpose is 

to prove past events that may be relevant in a future prosecution, the statements are 

testimonial. Davis, 547 U.S. at ___, 126 S. Ct. at 2273-74. Accordingly, when 

determining, for Confrontation Clause purposes, whether a statement is testimonial, we 

first consider whether it is objectively reasonable that the declarant intended the 

statement to be used as evidence against the accused and, second, where there is no clear 

reason to believe that the declarant intended the statement to be used as evidence, we 

consider the primary purpose of the statement. 

¶75 When considering the note in its entirety under these standards, Aleasha may just 

as well have intended the note to alert medical providers to the cause of a potential 

illness, a non-testimonial purpose, or, indeed, simply have offered an explanation to 

others about the reason for her demise. The salutation “[t]o whom it concerns[,]” just as 

“reasonably” includes medical or emergency personnel, relatives, and friends, thereby 

mitigating the note’s potential testimonial qualities. The Court ascribes a law 

enforcement purpose from this broad salutation because it necessarily includes law 

enforcement. Instead, the Court should infer otherwise: because the generic salutation 
37

potentially included anyone in the world, it was not primarily a directive to law 

enforcement. 

¶76 Even assuming that the Court’s reasoning about Aleasha’s note and the reasoning 

of this concurrence offer competing, objectively reasonable interpretations regarding 

Aleasha’s intent, it would then be appropriate to consider, as in Davis and Spencer, the 

“primary purpose” of the note to determine whether it constitutes testimonial or nontestimonial evidence. Here the Court limits the application of our holding in Spencer to 

only interrogations, Opinion, ¶ 38 n. 1, thereby disregarding the very reason we adopted 

the primary purpose test in the first place. We adopted the primary purpose analysis 

because the “clear reason to believe” standard was unworkable as applied to the 

statement of a three-and-a-half-year-old child. Spencer, ¶ 22. Accordingly, application 

of the primary purpose analysis does not turn solely on whether an interrogation is 

involved, but considers whether the clear reason to believe standard is unworkable under 

the circumstances. However, in an effort to avoid consideration of the primary purpose 

of the note, the Court narrowly constricts the kinds of circumstances in which the primary 

purpose analysis can be applied—only to interrogations—and deflates our holding in 

Spencer. This is an artificial and shortsighted tact which will not serve us well in the 

future. To the contrary, the primary purpose analysis should be applicable to any 

statement, including a hand-written note, where it is unclear whether the declarant 

intended the statement to be used as evidence. Accordingly, where there are competing 

objectively reasonable interpretations of a statement, as here, we should look to the 
38

statement’s primary purpose and “based on objective circumstances” determine whether 

the statement is testimonial. Spencer, ¶ 22.

¶77 Pursuant to our holding in Spencer, where the primary purpose of the statement is 

to assist in future litigation, the statement is deemed testimonial. Spencer, ¶ 22. 

However, where the primary purpose is to mitigate future harm, the statement is nontestimonial. Spencer, ¶ 22. In analyzing the primary purpose we must consider the 

totality of the “objective circumstances.” Spencer, ¶ 22. Unfortunately, the Court’s 

opinion considers only a fraction of the note. Looking at the note as a whole, most of the 

note discusses the availability of a drug which could possibly cause Aleasha’s sickness or 

death. The note’s third sentence states: “So, if I unexspetly [sic] become sick and on the 

edge of death, and perhaps I die no [sic] you will have some answers.” The conclusory 

word “so” indicates that the note’s purpose is to provide “answers” if Aleasha contracted 

a serious illness which could bring about her death. The note indicates the cause of her 

potential sickness (a drug from Mexico that doctors may not know about), and also 

suggests investigatory leads (Sanchez or his friends) that may be helpful in ascertaining 

either the type of drug for medical purposes or assigning criminal responsibility—an 

admittedly testimonial aspect of the note. However, looking at the note in its entirety, 

and the circumstances surrounding Aleasha’s handling of the note, discussed above, it 

served largely to alert family, friends, or medical personnel to the reasons she came down 

with a sudden and strange illness. Consequently, the note’s primary purpose was not to 

serve as evidence in a criminal prosecution, but to mitigate potential harm.
39

¶78 Thus, I would conclude that there is neither a “reasonably objective” reason to 

believe that the note was intended for criminal prosecution purposes, nor circumstances 

supporting a conclusion that the note was “primarily” written to support a prosecution. 

Accordingly, while I support adoption of the forfeiture by wrongdoing exception for 

Confrontation Clause purposes, I believe that the note is non-testimonial and would end 

the Confrontation Clause analysis at that point. 

/S/ JIM RICE

Justice John Warner concurs.

¶79 Along with Justice Rice, I concur with the Court’s conclusion to affirm the judgment.

¶80 I am constrained to reserve judgment on the wisdom of incorporating the forfeiture by 

wrongdoing hearsay exception into the Rules of Evidence. If such an amendment to the Rules is 

again proposed, I will consider arguments both for and against its adoption.

¶81 I must agree with Justice Rice’s analysis concerning the note left by Aleasha. It was not 

testimonial for the reasons he states in his concurrence. This is especially true in view of the fact 

that the note was not introduced to prove that Sanchez killed Aleasha, but for the sole purpose of 

providing relevant evidence concerning whether he did so while acting under the influence of

extreme mental or emotional stress. 

/S/ JOHN WARNER

Justice James C. Nelson, dissenting.
40

¶82 Although I agree with much of the Court’s analysis under Issue III, I conclude that 

the prosecutor’s misstatements of the law during closing arguments and the District 

Court’s explicit endorsement of those misstatements prejudiced Sanchez’s rights to due 

process and a fair trial under Article II, Sections 17 and 24 of the Montana Constitution. 

Accordingly, I conclude that this case should be reversed and remanded for a new trial, 

and I dissent from the Court’s contrary decision.

¶83 Given this conclusion, a discussion of Issues I, II, and IV is, arguably,

unnecessary. Nevertheless, given the importance of the Court’s holdings under Issue II, I 

write separately to explain my agreement and disagreement with certain points in the 

Court’s analysis. As for Issues I and IV, I agree with the Court’s resolution of these two 

issues; however, I write separately to express my disagreement with the approach 

proposed by Justice Rice’s concurrence for resolving Issue I. I first address Issue III, 

followed by Issue II and, lastly, Issue I.

Issue III

¶84 The role of the prosecutor is unique within the criminal justice system. It is not 

simply a specialized version of the duty of any attorney not to overstep the bounds of 

permissible advocacy. See State ex rel. Fletcher v. District Court, 260 Mont. 410, 415, 

859 P.2d 992, 995 (1993). Rather, as the Supreme Court explained long ago:

The [prosecutor] is the representative not of an ordinary party to a 

controversy, but of a sovereignty whose obligation to govern impartially is 

as compelling as its obligation to govern at all; and whose interest, 

therefore, in a criminal prosecution is not that it shall win a case, but that 

justice shall be done. As such, he is in a peculiar and very definite sense 

the servant of the law, the twofold aim of which is that guilt shall not 

escape or innocence suffer. He may prosecute with earnestness and 
41

vigor—indeed, he should do so. But, while he may strike hard blows, he is 

not at liberty to strike foul ones. It is as much his duty to refrain from 

improper methods calculated to produce a wrongful conviction as it is to 

use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935). Accordingly, the 

prosecutor is required to “execute the duties of his representative office diligently and 

fairly, avoiding even the appearance of impropriety that might reflect poorly on the 

state.” Fletcher, 260 Mont. at 415, 859 P.2d at 995 (citation and internal quotation marks 

omitted). Though he “must diligently discharge the duty of prosecuting individuals 

accused of criminal conduct, the prosecutor may not seek victory at the expense of the 

defendant’s constitutional rights.” Fletcher, 260 Mont. at 415, 859 P.2d at 995 (citation 

and internal quotation marks omitted). Indeed, the prosecutor “is obligated to respect the 

defendant’s right to a fair and impartial trial in compliance with due process of law.” 

Fletcher, 260 Mont. at 415, 859 P.2d at 995 (citation and internal quotation marks 

omitted). Simply stated, “a prosecutor should seek justice and not simply an indictment 

or a conviction.” Fletcher, 260 Mont. at 415, 859 P.2d at 995 (citing Preston v. State, 

615 P.2d 594, 601 (Alaska 1980)).

¶85 With these well-settled principles in mind, I agree with the Court’s preliminary 

analysis under Issue III. In particular, I agree with the Court that § 45-5-103(1), MCA, is 

unambiguous. Opinion, ¶ 52. Section 45-5-103(1), MCA, provides:

A person commits the offense of mitigated deliberate homicide when 

the person purposely or knowingly causes the death of another human 

being but does so under the influence of extreme mental or emotional stress 

for which there is reasonable explanation or excuse. The reasonableness 

of the explanation or excuse must be determined from the viewpoint of a 

reasonable person in the actor’s situation. [Emphases added.]
42

Under the plain language of this statute, the word “reasonable” modifies the defendant’s 

explanation or excuse for his emotional state, not the defendant’s actions. The statute 

requires the fact-finder to determine whether the defendant’s explanation or excuse for 

his extreme mental or emotional stress is reasonable. There is nothing in the statute that 

requires (or even permits) the jury to determine whether the defendant’s response to the 

extreme mental or emotional stress was reasonable.

¶86 I also agree with the Court that the prosecutor’s improper closing arguments went 

far beyond appropriate ad-libbing and that his comments demonstrate a blatant 

misstatement of § 45-5-103(1), MCA. Opinion, ¶ 54. Indeed, the prosecutor told the 

jurors—not once, but four times, and even after defense counsel had pointed out that the 

prosecutor was misstating the law—that they had to determine whether Sanchez’s actions

were reasonable. First, the prosecutor argued during his initial closing:

The defense counsel will argue that this was a reasonable response

to extreme emotional distress. You must ask yourself, is it reasonable? 

Was there extreme -- extreme emotional distress? Not just emotional 

distress but extreme emotional distress and was his reaction reasonable. 

You can argue until you’re blue in the face and you cannot make this 

defendant’s actions reasonable under these circumstances.[5] [Emphases 

added.]

Then, during his rebuttal closing, the prosecutor reiterated these misstatements of the law 

several more times:

 

5 Not only did the prosecutor misrepresent the law here, he also misrepresented to 

the jury what defense counsel would argue. Defense counsel argued the reasonableness 

of Sanchez’s explanation or excuse for his claimed extreme mental or emotional stress, 

not the reasonableness of Sanchez’s actions under the circumstances.
43

The Court read you the instructions. The reasonableness of the explanation 

or excuse must be determined from the viewpoint of a reasonable person in 

the actor’s situation. That is, what would a reasonable person do, not what 

the defendant did. The evidence in this case shows you it was not 

reasonable. And if it’s not reasonable, there goes mitigated deliberate 

homicide.

. . . .

Defense counsel said this is an extremely difficult case. I would 

make no comment on that but I will suggest to you, based on your lifetime 

experiences, was the defendant’s actions reasonable under these 

circumstances? Your lifetime experiences tell you that relationships come 

and go, that people get cheated on in their mind, that they are hurt, that they 

are angry. If it is reasonable then under those circumstances to kill 

somebody, the streets would be littered with corpses. [Emphases added.]

At this point, defense counsel objected that the prosecutor “is misinterpreting these 

instructions over and over again.” The court responded: “You may continue with 

closing. The objection is overruled.” The prosecutor then stated, yet again:

The streets would be littered with corpses if it was reasonable to shoot 

somebody because they cheated on you and made you angry. Based on 

your own lifetime experiences you have seen that. You may have been part 

of it. Did you kill somebody? Did somebody kill you, your friends, other 

people? No. That answers the question. This is not a reasonable response

for a person under these circumstances. [Emphases added.]

¶87 While the Court concludes that these improper statements “tested the boundaries 

of professional ethics,” Opinion, ¶ 54, I conclude that the prosecutor crossed those 

boundaries. Rule 3.1(a)(1) of the Montana Rules of Professional Conduct provides that 

“[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein 

. . . without having first determined through diligent investigation that there is a bona fide 

basis in law and fact for the position to be advocated” (paragraph break omitted). 

Likewise, Rule 3.3(a)(1) prohibits a lawyer from “knowingly . . . mak[ing] a false 

statement of . . . law to a tribunal or fail[ing] to correct a false statement of . . . law 
44

previously made to the tribunal by the lawyer” (paragraph break omitted). And Rule 

4.1(a) prohibits a lawyer from “knowingly . . . mak[ing] a false statement of . . . law to a 

third person” (paragraph break omitted).

¶88 Here, there is no legal basis for the version of § 45-5-103(1), MCA, argued by the 

prosecutor during closing arguments. The prosecutor’s statements of the law were 

patently false.6 Moreover, as the Court observes, the prosecutor’s comments were not 

mere inadvertence. Opinion, ¶ 54. As a matter of fact, if we accept that the prosecutor 

followed his duty under Rule 3.1(a)(1) not to advocate a position “without having first 

determined through diligent investigation that there is a bona fide basis in law” for that 

position, then the inference readily drawn from the record before us is that the prosecutor 

knowingly made false statements of law in violation of Rules 3.3(a)(1) and 4.1(a).

¶89 But it is not necessary to draw such an inference. The proposed jury instruction 

filed by the prosecutor with respect to the issue of mitigated deliberate homicide 

establishes that he was fully aware of the law under § 45-5-103(1), MCA. That proposed 

instruction states:

 

6 Although the State makes no attempt to show that the prosecutor correctly stated 

the law, the State does argue that the prosecutor’s statements were not improper. The 

State suggests that the prosecutor merely improvised, resulting in “syntax left imperfect 

and meaning less than crystal clear.” However, I agree with the Court that the State’s 

arguments in this regard are incongruous. Opinion, ¶ 54. In fact, the State’s candor to 

this Court is questionable in light of its attempt to spin the prosecutor’s misstatements as 

nothing more than “ambiguous” remarks, “inartfully spoken” and “not exemplars of 

clarity,” but “fair arguments” if not viewed in “distorted isolation.” These 

characterizations are disingenuous at best, given that the prosecutor blatantly 

misrepresented the law, not once, but four times in his two closing arguments. The State 

legitimately may argue that Sanchez waived his claim of error or was not prejudiced by 

the prosecutor’s misstatements; but as to those misstatements, the State has an ethical 

duty to candidly concede obvious prosecutorial misconduct.
45

In order to find the Defendant guilty of the lesser offense of 

mitigated deliberate homicide, the State must prove the following two 

propositions:

 First, that the Defendant caused the death of Aleasha Chenoweth and

 Second, that when the Defendant did so, he acted purposely or 

knowingly;

Additionally, you must find that at the time the Defendant caused the death 

of Aleasha Chenoweth, he was acting under the influence of extreme mental 

or emotional stress for which there is reasonable explanation or excuse. 

The reasonableness of such explanation or excuse shall be determined from 

the viewpoint of a reasonable person in the Defendant’s situation. 

[Emphasis added.]

The emphasized language is identical to the pertinent language of § 45-5-103(1), MCA. 

In other words, the prosecutor correctly recited the language of the statute in his proposed 

jury instruction but went to the jury and argued a completely different—and false—

version of the statute. Given these circumstances, I conclude that the prosecutor’s 

improper closing arguments did not merely “test[] the boundaries of professional ethics,” 

Opinion, ¶ 54, but instead crossed the boundaries of the Montana Rules of Professional 

Conduct and violated the prosecutor’s duties and responsibilities set out in Fletcher.

7

¶90 The Court holds that although the prosecutor improperly stated the law to the jury, 

Sanchez has not demonstrated that the prosecutor’s misstatements prejudiced his right to 

a fair and impartial trial. I disagree. The basic premise underlying the Court’s holding is 

that the District Court provided an unambiguous instruction on mitigated deliberate 

homicide and the jury followed that instruction. See Opinion, ¶ 58. In this regard, the 

 

7

In this regard, I note that in State v. Stewart, 2000 MT 379, 303 Mont. 507, 16 

P.3d 391, we chastised this same prosecutor for misrepresenting the State’s burden of 

proof during voir dire and closing argument. See Stewart, ¶¶ 35-45. We stated that 

although a prosecutor may comment on the burden of proof as it relates to facts presented 

in trial, he “may not go outside the record or misrepresent the law as instructed by the 

judge.” Stewart, ¶ 40 (emphasis added, citation omitted).
46

Court notes that “juries are presumed to follow the law that courts provide.” Opinion, 

¶ 57. This presumption is well-established in American jurisprudence, and I do not 

dispute it. However, I do dispute the Court’s assumption that the jury received an 

unambiguous instruction on mitigated deliberate homicide.

¶91 Prior to closing arguments, the District Court read Instructions 8 through 19. The 

instruction on mitigated deliberate homicide (Instruction 17) accurately conveyed 

§ 45-5-103(1), MCA, as follows:

A person commits the offense of Mitigated Deliberate Homicide 

when the person purposely or knowingly causes the death of another human 

being but does so under the influence of extreme mental or emotional stress 

for which there is reasonable explanation or excuse. The reasonableness of 

the explanation or excuse must be determined from the viewpoint of a 

reasonable person in the actor’s situation.

However, during the prosecutor’s rebuttal closing argument, the following sequence of 

events occurred:

[THE PROSECUTOR:] Defense counsel said this is an extremely 

difficult case. I would make no comment on that but I will suggest to you, 

based on your lifetime experiences, was the defendant’s actions reasonable 

under these circumstances? Your lifetime experiences tell you that 

relationships come and go, that people get cheated on in their mind, that 

they are hurt, that they are angry. If it is reasonable then under those 

circumstances to kill somebody, the streets would be littered with corpses.

[DEFENSE COUNSEL]: Your Honor, I’m going to have to object 

because he is misinterpreting these instructions over and over again.

THE COURT: You may continue with closing. The objection is 

overruled.

By overruling defense counsel’s objection that the prosecutor was misinterpreting the 

instructions, the District Court effectively endorsed the prosecutor’s statement as to what 

the jury had to decide—namely, whether Sanchez’s actions were reasonable. Not content 
47

to rest on his laurels, however, the prosecutor then proceeded to repeat this misstatement 

of the law:

[THE PROSECUTOR]: The streets would be littered with corpses if 

it was reasonable to shoot somebody because they cheated on you and 

made you angry. Based on your own lifetime experiences you have seen 

that. You may have been part of it. Did you kill somebody? Did 

somebody kill you, your friends, other people? No. That answers the 

question. This is not a reasonable response for a person under these 

circumstances. This is not extreme emotional distress. Thank you.

Immediately thereafter, the bailiffs were sworn and the jurors began their deliberations.

¶92 It is apparent on this record that the jury received conflicting instructions from the 

court on mitigated deliberate homicide. Under Instruction 17, which was given before 

closing arguments, the jury was told to decide whether Sanchez, at the time he caused 

Aleasha’s death, was under the influence of extreme mental or emotional stress for which 

there was reasonable explanation or excuse. But under the version of the law provided by 

the prosecutor near the end of his rebuttal closing argument, the jury was told to decide 

whether Sanchez’s “actions” themselves were reasonable under the circumstances, i.e., 

whether killing Aleasha was “a reasonable response for [Sanchez] under these 

circumstances.” The District Court explicitly endorsed the prosecutor’s incorrect 

articulation of the law when it overruled defense counsel’s objection that the prosecutor 

was misinterpreting the instructions.

¶93 A virtually identical situation occurred in State v. Jones, 615 S.W.2d 416 (Mo. 

1981), which the Missouri Supreme Court described as follows:

Three things stand out about the argument in this case: First, the 

prosecutor told the jury [during closing argument] that a “reasonable belief” 

satisfied the requirement of proof beyond a reasonable doubt. . . . Thus, the 
48

prosecutor in this case undertook to define reasonable doubt in wholly 

erroneous terms. Second: The prosecutor’s statement was promptly 

objected to and the objections were overruled, giving the argument the 

imprimatur of the trial court. Third: The prosecutor was not content with a 

passing reference to the subject, but upon the overruling of defense 

objection, proceeded to repeat his erroneous definition of reasonable doubt.

Jones, 615 S.W.2d at 420 (citations omitted). The court reversed the convictions, noting 

that while the evidence of guilt was strong, the prosecutor’s misstatements could not be 

excused as harmless.

¶94 In the case at hand, the Court reasons that the prosecutor informed the jury that the 

attorneys’ closing arguments were not evidence. Opinion, ¶ 57. But the problem here is 

not that the prosecutor purported to provide evidence; the problem here is that the 

prosecutor purported to state the law of mitigated deliberate homicide and the District 

Court gave the prosecutor’s misstatements the imprimatur of the court. The Court also 

reasons that the jury was presented with defense counsel’s correct interpretation of the 

law. Opinion, ¶ 57. But the District Court never endorsed defense counsel’s 

interpretation of the law; the court only endorsed the prosecutor’s interpretation of the 

law, which was patently false.

¶95 “American jurisprudence depends on a jury’s ability to follow instructions and 

juries are presumed to follow the law that courts provide.” Opinion, ¶ 57 (citing State v. 

Turner, 262 Mont. 39, 55, 864 P.2d 235, 245 (1993), and Opper v. United States, 348 

U.S. 84, 95, 75 S. Ct. 158, 165 (1954)). Accordingly, when the trial court imparts 

conflicting versions of the law and thereby inhibits the jury from correctly following the 

law, the resulting verdict cannot stand. Indeed, this Court has long recognized that the 
49

giving of conflicting jury instructions on a material issue is reversible error. See e.g. 

State v. Rolla, 21 Mont. 582, 587, 55 P. 523, 525 (1898); Wells v. Waddell, 59 Mont. 436, 

443-44, 196 P. 1000, 1002 (1921); Skelton v. Great Northern Ry. Co., 110 Mont. 257, 

261, 100 P.2d 929, 931 (1940); Bohrer v. Clark, 180 Mont. 233, 246, 590 P.2d 117, 124 

(1978); Swenson v. Buffalo Bldg. Co., 194 Mont. 141, 151, 635 P.2d 978, 984 (1981). In 

Rolla, the Court observed that “when conflicting propositions of law are given upon a 

material point, one correct and the other incorrect, the judgment will be reversed. It 

cannot be assumed in such case that the jury will follow the correct statement of the law.” 

Rolla, 21 Mont. at 587, 55 P. at 525.

¶96 In the case at hand, the jury unquestionably received conflicting statements as to 

the law under § 45-5-103(1), MCA: first, the court’s correct instruction that Sanchez’s 

explanation or excuse for his extreme mental or emotional stress had to be reasonable, 

and second, the prosecutor’s incorrect statement, which received the imprimatur of the 

court, that Sanchez’s actions had to be reasonable. Section 45-5-103(1), MCA, carves a 

fine line—one that is easily capable of being misunderstood by jurors, particularly when 

they receive conflicting statements as to its meaning. Under these circumstances, the 

Court’s assumption that the District Court provided an unambiguous instruction on 

mitigated deliberate homicide is invalid.

¶97 Before concluding, I note that the Court has imposed on Sanchez a virtually 

insurmountable burden to demonstrate that he was prejudiced by the prosecutor’s 

misstatements. As the Supreme Court observed in Berger,
50

the average jury, in a greater or less degree, has confidence that [the 

obligations to govern impartially and to do justice], which so plainly rest 

upon the prosecuting attorney, will be faithfully observed. Consequently, 

improper suggestions, insinuations, and, especially, assertions of personal 

knowledge are apt to carry much weight against the accused when they 

should properly carry none.

Berger, 295 U.S. at 88, 55 S. Ct. at 633. Along these same lines, we observed in State v. 

Stringer, 271 Mont. 367, 897 P.2d 1063 (1995), that improper comment by the prosecutor 

creates an unacceptable risk that jurors will simply adopt the prosecutor’s views instead 

of exercising their own independent judgment. See Stringer, 271 Mont. at 381, 897 P.2d 

at 1071. Yet, there is no way that Sanchez can get inside the minds of the jurors in his 

case to determine whether this occurred—i.e., whether they rendered their verdict based 

on the law as incorrectly stated by the prosecutor and endorsed by the District Court. 

Moreover, even if a juror offered insight in this regard, Sanchez is prohibited from using 

juror testimony or affidavits to impeach a verdict based upon misapprehension of the law. 

See M. R. Evid. 606(b); State v. Kelman, 276 Mont. 253, 262, 915 P.2d 854, 860 (1996). 

As it turns out, the District Court’s endorsement of the prosecutor’s incorrect statement of 

the law establishes, in my view, that Sanchez was deprived of a fair trial and due process 

of law. But one is left to wonder how Sanchez, under the burden imposed by the Court, 

otherwise could have demonstrated prejudice as a result of the prosecutor’s 

misstatements.

¶98 In this regard, I believe that the Court errs in not weighing the prosecutor’s 

misconduct more heavily in the analysis. By refusing to recognize prejudice to Sanchez, 

the Court not only affirms the denial of his constitutional rights to due process and a fair 
51

trial but also sends the message that there are no adverse consequences to prosecutorial 

misconduct of this nature. In my view, if a prosecutor knowingly flaunts the Montana 

Rules of Professional Conduct, repeatedly misrepresents the law to the jury, and blatantly 

ignores this Court’s admonishment in a prior case not to misstate the law as instructed by 

the judge (see ¶ 89 n. 3, supra), these factors should be weighed heavily in determining 

whether the defendant was deprived of a fair trial and due process of law.

¶99 That said, the fact that the District Court imparted conflicting versions of 

§ 45-5-103(1), MCA, to the jury is itself reversible error. If one accepts the premise that 

a jury which is given conflicting propositions of law cannot correctly follow the law, then 

the entire foundation of the Court’s resolution of Issue III crumbles, as it should. In light 

of the prosecutor’s repeated misstatements of the law and the District Court’s 

endorsement of those misstatements, we simply cannot have confidence that the jury was 

able to properly consider the lesser included offense of mitigated deliberate homicide. 

Cf. State v. Rogers, 2001 MT 165, ¶¶ 14-22, 306 Mont. 130, ¶¶ 14-22, 32 P.3d 724, 

¶¶ 14-22 (holding that the defendant was prejudiced because the jury’s ability to consider 

the lesser included offense had not been “maximize[d]”). I conclude that Sanchez’s 

constitutional rights to a fair trial and to due process of law were clearly violated. I

therefore would reverse and remand this case for a new trial. I dissent from our failure to 

do so.

Issue II

¶100 In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), the Supreme 

Court announced a categorical bar to the admission of certain hearsay evidence at a 
52

criminal trial. Specifically, the Supreme Court held that under the Sixth Amendment to 

the United States Constitution, the “testimonial” statement of a witness who is absent 

from trial is inadmissible unless the witness is unavailable to testify and the defendant has 

had a prior opportunity to cross-examine the witness. See Crawford, 541 U.S. at 53-54, 

68, 124 S. Ct. at 1365, 1374. Although the Supreme Court identified three formulations 

of what constitutes a testimonial statement, see Crawford, 541 U.S. at 51-52, 124 S. Ct. at 

1364, the Supreme Court did not adopt a specific definition, opting instead to define the 

term on a case-by-case basis, see e.g. Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266 

(2006). However, as this Court notes in ¶¶ 34 and 36 of today’s Opinion, the Supreme 

Court has suggested a number of considerations that are pertinent in determining whether 

a statement is testimonial—in particular, the statement’s purpose, the statement’s context, 

and the audience to whom the statement was made. None of these considerations is 

dispositive; rather, they inform the ultimate question of whether the declarant should 

have expected, under the circumstances, that the State would use his or her statements at 

trial. In other words, would a reasonable person in the position of the declarant have 

objectively foreseen or anticipated that his or statements might be used in the 

investigation or prosecution of a crime? See United States v. Townley, 472 F.3d 1267, 

1272 (10th Cir. 2007), cert. denied, ___ U.S. ____, 127 S. Ct. 3069 (2007); United States 

v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004).

¶101 I agree with the Court’s explanation of these principles in ¶¶ 34 and 36. I also 

agree with the Court’s analysis in ¶¶ 37 and 38 of whether the statements contained in 

Aleasha’s note were testimonial. As the Court observes, the nature of the note was 
53

accusatory. It identified Aleasha’s killer and the threatened means of execution, and it 

stated the exact time and date of Sanchez’s reported threat. It purported to provide “some 

answers” regarding a crime that would certainly be prosecuted if sufficient evidence, 

such as the note, were available; and in this sense, the note’s obvious purpose was to 

speak for Aleasha regarding her unexpected demise should she not be able to speak for 

herself, i.e., to provide incriminating testimony that Aleasha could not provide in person. 

It was addressed to a broad audience of persons who might be concerned about Aleasha’s 

illness or death, and it was placed in a location where law enforcement was likely to find 

it. Indeed, the detective who found the note testified that he searched Aleasha’s residence 

because he “felt that it was important to go there to look for any notes or written letters, 

any diaries, e-mails or just anything that might document some kind of a history,” more 

specifically, “[a]ny kind of history of threats [being made to Aleasha].” Not surprisingly, 

when he found the note, he immediately recognized its “evidentiary value.”

¶102 The State contends that Aleasha’s note “does not reasonably purport to show an 

intent it would be used prosecutorially but only an intent to direct attention (possibly only 

medical attention) to the reasons for any suspicious illness.” As the Court observes, 

however, this contention completely ignores the accusatory nature of the note. Moreover, 

I find it highly implausible that a person who intends to alert medical personnel to the 

reasons for a suspicious illness would place such information in a pile of correspondence 

and bills where it is not reasonably likely to be discovered by medical personnel in a 

timely manner, if at all. In any event, the State’s argument also misapprehends the 

pertinent inquiry here, which is not what Aleasha specifically intended but, rather, what 
54

an objective declarant reasonably would have expected under the circumstances, Opinion, 

¶ 36, i.e., whether Aleasha should have understood (whether she actually did or not) at 

the time she wrote the note that there was a significant probability the statements 

contained therein would be used prosecutorially. Under the circumstances presented, an 

objective declarant in Aleasha’s position would have anticipated that the statements 

contained in the note would be used in the investigation and prosecution of Sanchez.

¶103 Accordingly, I agree with the Court’s analysis and conclusion that Aleasha’s note 

contained testimonial statements. In addition, I agree with the Court’s conclusion that the 

rule of forfeiture by wrongdoing applies in this case. However, I do not agree with the 

Court’s explication of this rule.

¶104 In Crawford, the Supreme Court noted that the rule of forfeiture by wrongdoing is 

an exception to the Confrontation Clause’s categorical bar against the admission of 

testimonial statements. See Crawford, 541 U.S. at 62, 124 S. Ct. at 1370. This 

exception, the Supreme Court noted, extinguishes confrontation claims on essentially 

equitable grounds. See Crawford, 541 U.S. at 62, 124 S. Ct. at 1370; accord Davis v. 

Washington, 547 U.S. 813, 126 S. Ct. 2266, 2280 (2006).

¶105 In Davis, the Supreme Court provided further insight into the scope of the 

forfeiture-by-wrongdoing exception. Addressing the argument that the nature of the 

offense charged in that case—domestic violence—required greater flexibility in the use 

of testimonial evidence against the accused, the Supreme Court noted that this particular 

type of crime is “notoriously susceptible to intimidation or coercion of the victim to 

ensure that she does not testify at trial” and that when this occurs, “the Confrontation 
55

Clause gives the criminal a windfall.” Davis, 126 S. Ct. at 2279-80. Notwithstanding, 

the Supreme Court held that “[w]e may not, however, vitiate constitutional guarantees 

when they have the effect of allowing the guilty to go free.” Davis, 126 S. Ct. at 2280.

¶106 At the same time, however, the Supreme Court noted that the rule of forfeiture by 

wrongdoing may extinguish confrontation claims under certain circumstances:

But when defendants seek to undermine the judicial process by procuring 

or coercing silence from witnesses and victims, the Sixth Amendment does 

not require courts to acquiesce. While defendants have no duty to assist the 

State in proving their guilt, they do have the duty to refrain from acting in 

ways that destroy the integrity of the criminal-trial system. We reiterate 

what we said in Crawford: that the rule of forfeiture by wrongdoing . . . 

extinguishes confrontation claims on essentially equitable grounds. That is, 

one who obtains the absence of a witness by wrongdoing forfeits the 

constitutional right to confrontation.

Davis, 126 S. Ct. at 2280 (ellipsis in original; emphasis, citations, and internal quotation 

marks omitted).

¶107 This language—in particular, the Supreme Court’s use of the verb “seek” in 

conjunction with “undermin[ing] the judicial process” and “destroy[ing] the integrity of 

the criminal-trial system”—as well as the Supreme Court’s refusal to vitiate the right of 

confrontation because the charged offense is susceptible to intimidation or coercion of the 

victim-declarant indicate that the focus of the forfeiture doctrine is not solely on whether 

the defendant may benefit from his own wrongdoing. In other words, not all conduct by 

the defendant that happens to result in a witness’s unavailability comes within the 

doctrine. Rather, the doctrine is directed specifically at conduct by which the defendant 

“seek[s]” or intends “to undermine the judicial process” or “destroy the integrity of the 

criminal-trial system” by procuring or coercing silence from witnesses and victims.
56

¶108 This conclusion is substantiated by the Supreme Court’s observation in Davis that 

“Federal Rule of Evidence 804(b)(6) . . . codifies the forfeiture doctrine.” Davis, 126 

S. Ct. at 2280. Federal Rule 804(b)(6) provides as follows: “The following are not 

excluded by the hearsay rule if the declarant is unavailable as a witness: . . . A statement 

offered against a party that has engaged or acquiesced in wrongdoing that was intended

to, and did, procure the unavailability of the declarant as a witness” (emphasis added, 

paragraph breaks omitted). Again, according to Davis, this is a codification of the 

forfeiture doctrine, Davis, 126 S. Ct. at 2280; and by its own terms, the doctrine requires 

an intent to procure the declarant’s unavailability as a witness. Numerous courts have 

reached the same conclusion. See State v. Romero, 156 P.3d 694, 702 (N.M. 2007)

(citing cases, and concluding that the majority rule requires proof of an intent to prevent 

the declarant from testifying), cert. dismissed, ___ U.S. ___, ___ S. Ct. ___ (Jan 11, 

2008); see also People v. Stechly, 870 N.E.2d 333, 348-53 (Ill. 2007) (analyzing the 

forfeiture doctrine and Fed. R. Evid. 804(b)(6) and concluding that intent is an element of 

the doctrine), rehearing denied (May 29, 2007); People v. Moreno, 160 P.3d 242, 246 

(Colo. 2007) (noting that “the clear consensus in non-murder cases is that the doctrine 

requires a showing of an intent on the part of the defendant to prevent the declarant from 

testifying at trial”), rehearing denied (Jun. 25, 2007); United States v. Gray, 405 F.3d 

227, 242 n. 9 (4th Cir. 2005) (“[T]he intent requirement in Rule 804(b)(6) continues to 

limit application of the forfeiture-by-wrongdoing exception to those cases in which the 

defendant intended, at least in part, to render the declarant unavailable as a witness 

against him. Absent such intent, Rule 804(b)(6) has no application.” (citation omitted)).
57

¶109 That said, I recognize that a case such as this—where the defendant has admitted 

to deliberately causing the victim’s death through wrongdoing and, thus, causing the 

victim’s absence from trial—presents an unusual situation. There is no evidence in the 

record that Sanchez sought by this action to undermine the judicial process or to destroy 

the integrity of the criminal-trial system. Indeed, there was no “judicial process” to 

undermine at the time Sanchez committed the homicide. It would seem, therefore, that 

the rule of forfeiture by wrongdoing, as articulated in Davis, is inapplicable. On the other 

hand, had Sanchez merely assaulted Aleasha, and had he then caused her absence from 

trial by admittedly threatening her, the forfeiture doctrine presumably would have 

applied. Thus, we would be rewarding defendants who admittedly killed their victims 

through wrongdoing if we did not apply the same rule to them. To avoid this anomaly, I 

conclude that where the defendant has admitted to deliberately causing the declarant’s 

death through wrongdoing, then the forfeiture-by-wrongdoing exception applies to that 

specific declarant’s out-of-court statements.8

¶110 On this basis, I conclude that the admission of Aleasha’s note did not deprive 

Sanchez of his right of confrontation. He procured Aleasha’s unavailability by fatally 

shooting her, thereby rendering her unavailable as a witness, and he admitted to having 

engaged in this wrongdoing deliberately (albeit, with mitigating circumstances).

¶111 The Court reaches the same result; however, in so doing, the Court relies on

principles broad enough to suggest that the forfeiture-by-wrongdoing exception applies 

 

8

I would not necessarily apply this rule where there is a justifiable use of force 

defense. But since that is not an issue here, I leave that discussion for another day.
58

irrespective of whether the defendant had an intent to procure the declarant’s 

unavailability as a witness. It is on this point that I believe the Court errs.

¶112 Throughout the Court’s discussion in ¶¶ 40 through 46, the Court repeatedly refers 

to the “equitable basis” of the forfeiture-by-wrongdoing exception and the maxim that 

“no person should benefit from the person’s own wrongdoing.” Indeed, this maxim is the 

foundation of the Court’s conclusion that Sanchez forfeited his right to confrontation in 

this case. See Opinion, ¶¶ 46-47. Yet, while Crawford and Davis refer to the “equitable” 

basis of the doctrine, neither opinion states that the doctrine applies broadly to prevent a 

defendant from “benefiting” from his own wrongdoing. Moreover, if the forfeiture-bywrongdoing exception applied whenever a defendant would otherwise “benefit” from his 

own wrongdoing—whether or not that wrongdoing was intended to procure a declarant’s 

unavailability as a witness—then the exception most certainly would swallow the rule. 

What if the victim-declarant is simply too frightened to face the defendant at trial? Has 

the defendant then “benefited” from his wrongdoing and thereby forfeited his right to 

confrontation? It would seem so under the broad language used by this Court.

¶113 The Court’s approach of relying on general maxims and principles of equity 

contradicts the Supreme Court’s unambiguous statement that “Federal Rule of Evidence 

804(b)(6) . . . codifies the forfeiture doctrine,” Davis, 126 S. Ct. at 2280, and the fact that 

Fed. R. Evid. 804(b)(6) requires an intent to procure the declarant’s unavailability as a 

witness. The Court seems to dismiss the Supreme Court’s statement in Davis as 

“primarily dicta,” Opinion, ¶ 42, and to adopt the California Supreme Court’s broad 

reasoning in People v. Giles, 152 P.3d 433 (Cal. 2007), cert. granted, ___ U.S. ___, ___ 
59

S. Ct. ___ (Jan. 11, 2008), namely, that “ ‘[a] defendant whose intentional criminal act 

renders a witness unavailable for trial benefits from his crime if he can use the witness’s 

unavailability to exclude damaging hearsay statements by the witness that would 

otherwise be admissible,’ ” Opinion, ¶ 43 (quoting Giles, 152 P.3d at 443). It is 

imprudent, however, to so readily dismiss the narrow version of the rule suggested in 

Davis in favor of the broad interpretation offered in Giles—particularly since we are 

speaking of a constitutional right and since the result of the Court’s broad, sweeping 

statements in ¶¶ 40 through 46 to the effect that the doctrine applies to any wrongdoing 

by a defendant from which he or she happens to “benefit” will most surely be to render 

that constitutional right subject to exception more often than not. In my view, the 

defendant’s intent is an element of the forfeiture-by-wrongdoing exception, and the Court 

errs to the extent it suggests otherwise.

¶114 In sum, I agree with the Court’s analysis and conclusion that Aleasha’s note 

contained testimonial statements. Furthermore, I agree with the Court that the forfeitureby-wrongdoing exception applies on the facts of this case. However, I strenuously 

disagree with the Court’s suggestion in ¶¶ 40-46 that the exception applies whenever a 

person would otherwise benefit from his or her own wrongdoing.

Issue I

¶115 As noted at the outset, I agree with the Court’s resolution of Issue I. However, 

because we will, no doubt, confront the matter of adopting the forfeiture-by-wrongdoing 

exception to the hearsay rules in some other context, I believe that it is appropriate to 

respond briefly to Justice Rice’s arguments on this point (see Concurrence, ¶¶ 65-68).
60

¶116 I respectfully disagree that we should adopt this exception to the hearsay rules, 

either by way of our caselaw or by an amendment to the Rules of Evidence. My rationale 

is grounded in the nature of hearsay evidence and in the reasons we reject hearsay

evidence as a general rule and admit it, as exceptions to the general rule, only under 

narrowly-defined circumstances. Indeed, if the purpose of our courts is to “search for 

truth,” Concurrence, ¶ 68, then we ought not to disregard the two elemental principles 

underpinning the law of hearsay.

¶117 First, as a general rule, “[h]earsay is not admissible except as otherwise provided 

by statute, these rules, or other rules applicable in the courts of this state.” M. R. Evid. 

802 (emphasis added). As noted in the Commission Comments to Rule 802, “the rule 

that hearsay is inadmissible has been followed in Montana without question since the 

early case of Davis v. Blume, 1 Mont. 463, 465 (1872).” This broadly-stated prohibition 

reflects the well-settled view that out-of-court statements are presumptively unreliable, 

given that the declarant’s perception, memory, and veracity cannot be tested in the 

presence of the fact-finder while under oath and subject to cross-examination. As 

explained by the United States Court of Appeals for the Second Circuit:

The hearsay rule is generally said to exclude out-of-court statements 

offered for the truth of the matter asserted because there are four classes of 

risk peculiar to this kind of evidence: those of (1) insincerity, (2) faulty 

perception, (3) faulty memory and (4) faulty narration, each of which 

decreases the reliability of the inference from the statement made to the 

conclusion for which it is offered. The hearsay rule ordinarily prohibits the 

admission of out-of-court statements by declarants on the theory that crossexamination can help test for these four classes of error, thus allowing the 

fact-finder to weigh the evidence properly and to discount any that is too 

unreliable.
61

Schering Corp. v. Pfizer Inc., 189 F.3d 218, 232 (2nd Cir. 1999) (citations omitted); see 

also United States v. Shukri, 207 F.3d 412, 417 (7th Cir. 2000) (“Hearsay testimony is 

presumptively unreliable under the common law because the opposing party has no 

opportunity to cross-examine and test the declarant’s truthfulness under oath before the 

factfinder.” (citing 5 John H. Wigmore, Evidence in Trials at Common Law § 1368, at 37, 

§ 1420, at 251 (rev. ed. 1974), and McCormick on Evidence § 245, at 728 (Edward W. 

Cleary ed., 3d ed., 1984))). The opportunity for the fact-finder to weigh the declarant’s 

sincerity, perception, memory, and narration and to discount any testimony that is too 

unreliable is lost where that evidence is admitted by way of a third party who simply 

repeats the declarant’s statements in court.

¶118 Second—and this principle follows from the first—the exceptions to the general 

prohibition against hearsay evidence are grounded in “circumstantial guarantees of 

trustworthiness,” M. R. Evid. 804(b)(5), i.e., a consensus that out-of-court statements 

made under certain circumstances are sufficiently reliable to allow their admission 

notwithstanding the declarant’s absence. See e.g. Commission Comments to M. R. Evid. 

803(4) (“The guarantee of trustworthiness [underpinning the statements-for-purposes-ofmedical-diagnosis-or-treatment exception] is provided by the patient’s motivation for 

proper diagnosis and treatment.”); Commission Comments to M. R. Evid. 803(6) (“The 

guarantee of trustworthiness [underpinning the records-of-regularly-conducted-activity 

exception] is provided by the nature of the record and the circumstances of preparation, 

enhanced by systematic checking, by regularity and continuity which produce habits of 

precision, by actual experience of business in relying upon them, or by a duty to make an 
62

accurate record as part of a continuing job or occupation.” (internal quotation marks 

omitted)); see also Schering Corp., 189 F.3d at 233 (“[T]he trustworthiness of [the 

traditional exceptions to the hearsay rule] is a function of their ability to minimize some 

of the four classic hearsay dangers.”).

¶119 In sum, as a general rule, the admission of hearsay evidence is not a reliable and 

trustworthy vehicle for finding “truth”; rather, this form of evidence frustrates that search, 

which is why Rule 802 exists in the first place. But we admit certain categories of 

hearsay testimony where the law has determined, based on historical evidence and 

practice, that there are circumstantial guarantees of reliability and trustworthiness built 

into these categories of hearsay testimony and that these types of evidence, therefore, 

may enhance or further the search for truth.

¶120 The forfeiture-by-wrongdoing exception, however, is not based on any notion of 

reliability or trustworthiness. Indeed, the fact that an actor engaged or acquiesced in 

wrongdoing that was intended to, and did, procure the unavailability of the declarant as a 

witness provides no indication whatsoever as to whether that declarant’s out-of-court 

statement is reliable or trustworthy. The statement may be true, or it may be a complete 

fabrication. It may be based on accurate information or on a complete misperception of 

the events in question. It may be reliable due to one or more of the circumstances that 

underlie the other exceptions to the hearsay rule, or it may have no independent and 

inherent indicia of reliability and trustworthiness at all. It might, in the first instance, 

enhance the search for truth, or it might, in the second, significantly frustrate or obviate 

that search altogether.
63

¶121 For these reasons, I disagree that the forfeiture-by-wrongdoing exception serves a 

role in the “search for truth.” Rather, application of the exception results in a conclusive 

presumption about the truth of a declarant’s out-of-court statement based solely on the 

alleged conduct of the accused. More to the point, in most instances, application of the 

exception is about punishing the alleged conduct for which the actor is on trial and of 

which he or she is presumed innocent; it has nothing to do with facilitating the search for 

truth by admitting presumably reliable out-of-court statements.

¶122 We have always examined evidence objected to on hearsay grounds through the 

lens of circumstantial guarantees of trustworthiness, and it seems dangerous to me to 

eliminate this perspective for an entire category of statements. Once we discard this 

analysis for one category of evidence, why not do it for others? I cannot agree with so 

readily tossing out our historical litmus test.

¶123 Thus, irrespective of Federal Rule of Evidence 804(b)(6),9 hearsay statements 

offered in Montana courts against a party who engaged or acquiesced in wrongdoing that 

 

9

This Court has long refused to march lock-step with federal interpretations of 

corresponding constitutional provisions. See e.g. State v. Johnson, 221 Mont. 503, 512-

14, 719 P.2d 1248, 1254-55 (1986); Buckman v. Montana Deaconess Hosp., 224 Mont. 

318, 324, 730 P.2d 380, 384 (1986); State v. Bullock, 272 Mont. 361, 383-84, 901 P.2d 

61, 75-76 (1995); Ranta v. State, 1998 MT 95, ¶ 25, 288 Mont. 391, ¶ 25, 958 P.2d 670, 

¶ 25; Woirhaye v. District Court, 1998 MT 320, ¶ 14, 292 Mont. 185, ¶ 14, 972 P.2d 800, 

¶ 14. Montana also does not march lock-step with federal procedural and evidentiary 

rules. See e.g. Table C, Montana Rules of Evidence Differing from Federal Rules of 

Evidence, Title 26, Chapter 10, MCA (Annotations 2006). Likewise, the mere fact that 

the federal government has adopted the forfeiture-by-wrongdoing exception in the 

Federal Rules of Evidence is not itself a principled ground for adopting the exception as 

part of the Montana Rules of Evidence. Contrary to Justice Rice’s concurrence, this is 

not to say that “consideration” of the approaches taken by the federal government and our 

sister states is unprincipled. Concurrence, ¶ 66 n. 1. Rather, it is to say that wholesale 

adoption of the exception merely because others have done so would be unprincipled.
64

was intended to, and did, procure the unavailability of the declarant as a witness must 

continue to be evaluated on a case-by-case basis under existing hearsay law. If the 

statement offered is hearsay, then it should not be admitted absent the statement’s falling 

under one of those narrow hearsay exceptions that is historically grounded in independent 

and inherent indicia of reliability and trustworthiness. The rules of evidence must remain 

a neutral medium which facilitate the search for truth; they must not become instruments 

of punishment.

Conclusion

¶124 Based on my analysis under Issue III, I conclude that this case should be reversed 

and remanded for a new trial. I dissent from the Court’s contrary decision. As to Issue 

II, I agree with the Court’s analysis and conclusion that Aleasha’s note contained 

testimonial statements, and I agree with the Court that the forfeiture-by-wrongdoing 

exception applies to Sanchez’s confrontation claims; however, I reach the latter 

conclusion concerning the applicability of the forfeiture-by-wrongdoing exception on a 

narrower ground than the rationale underlying the Court’s decision.

/S/ JAMES C. NELSON

/S/ PATRICIA COTTER

Chief Justice Karla M. Gray, dissenting.

¶125 I join Justice Nelson’s dissent on Issue III and would reverse and remand for a 

new trial on that basis. Like Justice Nelson, it is my view that, if the Court reached the 
65

correct result on this issue, there would be no need to address the others. Because various 

views on Issues I and II are offered by others, I will do so as well, but only briefly.

¶126 On Issue I, I would not adopt the forfeiture by wrongdoing exception to the 

hearsay rules for the reasons expressed by Justice Nelson. This is a matter best 

considered on a case-by-case basis, at least until such time as we have sufficient 

experience with the doctrine here in Montana to consider it more knowledgeably.

¶127 On Issue II, I join Justice Rice’s analysis of whether Aleasha’s note is testimonial. 

I would conclude it is not testimonial, for the reasons so cogently stated by Justice Rice. 

I also believe Aleasha’s lack of fear or concern through the course of events which 

occurred in this case—that is, the several threats and going out to Sanchez’s vehicle on 

the very day she was killed—buttresses that analysis. 

¶128 Moreover, I have grave concerns about the forfeiture by wrongdoing doctrine in 

certain cases. In this regard, I agree with Justice Nelson that forfeiture by wrongdoing 

should not apply in a deliberate homicide case involving the defense of justifiable use of 

force (that is, self-defense). It also is my view, however, that the doctrine is not 

applicable in this case where the defense of mitigated deliberate homicide is asserted.

¶129 I understand full well the notion and maxim that no one should benefit by his or 

her wrong. Indeed, that maxim underlies many legal subject areas, including fraudulent 

inducement in entering—and tortious interference with—a contract, and most other 

situations in which a party comes to a court without clean hands. It may well be that 

forfeiture by wrongdoing should apply as well in certain criminal cases, but I would not 

apply it here.
66

¶130 A bedrock principle of criminal law in this country is the constitutional right to 

confront one’s accusers. Another is the requirement that the prosecution prove its case 

beyond a reasonable doubt. Another—perhaps the most—bedrock principle of criminal 

law is the presumption of innocence. It is difficult for me to embrace the notion that an 

“equitable” basis such as forfeiture by wrongdoing can sweep away one’s constitutional 

confrontation rights. Indeed, it strikes me that—in a case such as this where the defense 

is to admit that the offense was committed but to offer the defense of mitigation—the 

opportunity to reasonably present the defense is effectively trumped by the admission of 

evidence that repeatedly highlights the wrongdoing. Thus, while the Court is correct, 

¶ 47, that it is the purposeful causing of the death of another which prevents the ability to 

exercise the right to confront the deceased, the purposeful death was not committed for 

the purpose of avoiding the confrontation. Stated differently, had there been a homicide 

for the purpose of preventing the victim from testifying or assisting in a criminal 

prosecution, I would agree that forfeiture by wrongdoing properly would apply; other 

factual situations might also support application of the doctrine. I cannot join the Court 

in applying it here.

¶131 I would reverse and remand for a new trial on prosecutorial misconduct in this 

cause number.

/S/ KARLA M. GRAY